Yellamalli Venkatapriyanka and Other vs State of Maharashtra and Other

SC Dharmadhikari, J

1 These petitions, under Article 226 of the Constitution of India, raise common questions of fact and law They were heard together and are being

disposed of by this common judgment.

2 In such of the Writ Petitions which have been filed and not formally admitted, we grant Rule The respondents waive service  We have been

informed that the State Government has filed a comprehensive affidavit in a Writ Petition on the Original Side being Writ Petition (Lodg) No 1947 of

2018Â That sets out the stand common to all the matters and, therefore, that is adopted in the other petitions by the contesting respondents.

3Â As is usual in this Court and in the academic sessions, despite warning signals, reminders as also admonishment from the Hon'ble Supreme Court,

the state of affairs with regard to admissions to undergraduate courses in medicines have not improved in the State of Maharashtra In this regard,

we can usefully refer to the anguish expressed by the Hon'ble Supreme Court while delivering its judgment in the case of Saurabh Choudri & Ors vs

Union of India & Ors That decision is reported in (2003) 11 SCC 146 The lead judgment is delivered by the then Hon'ble Chief Justice of India

VN Khare, J and there are concurring opinions rendered by Hon'ble Mr Justice SB Sinha and Hon'ble Mr Justice Dr AR Laxmanan In the

concurring judgments it has been pointed out as to how the issues crop up year after year and there is confusion and chaos all over In paragraph 94

of this judgment, the Court observed as under :

“94 For admissions to undergraduate programmes, there are several different eligibility norms among the different categories of institutions and

among the various States Some are based on twelfth standard marks or grades only, some are based on the entrance examination only and some

are determined by a combination of these with different weightages There is an endless number of justifications for each of the above, confusing

the students from different parts of the country.â€​

4Â Before paragraph 94 of the judgment, the Hon'ble Supreme Court observed as under :

“While concurring with the conclusion arrived at by the Hon'ble the Chief Justice, I would like to add the following few lines for streamlining the

policies and processes for admission to medical courses and other professional courses The issues and options are discussed below :

Every year during the admission season several lakhs of students undergo immense suffering and harassment in seeking admission to professional

courses caused by uncertain policies, ambiguous procedures and inadequate information The miseries of students and parents are escalating year

after year due to boundless expansion in the number of professional institutions and their intake capacity, emergence of a large variety of newer

disciplines and mobility of students seeking admissions beyond the boundaries of States The students who are about to complete their high

school education go through a period of acute anxiety caused by the uncertain situation about their chances for further education The number of

qualified students wanting to go for higher studies has been swelling, largely motivated by hopes of better economic security and partly by a desire to

attain greater upward social mobility Then begins their trauma due to many prevailing unfair practices in admissions and devious ways of fee

collections exploiting the anxiety of students and uncertainty of procedures Most of the efforts to deal with these problems are ad hoc in nature

often decided under judicial orders Different State and Central authorities take many different actions often leading to severe inconsistencies There

is substantial scope for streamlining the admission process, even within the regulatory powers of the authorities, provided these issues are not dealt

with on an emergency basis during the admission season but done in a coordinated and comprehensive manner ahead of time.â€​

5Â We have a repeat story this year as well.

6Â We can take with advantage, the facts which are set out in two Writ Petitions from Bombay and we are informed that there are more or less

identical circumstances in which the students from the Benches, namely, Aurangabad and Nagpur have been placed Similarly, there are intervenors

on both sides, the intervening students supporting the petitioners and the intervening students supporting the stand of the State Government.

7Â In Writ Petition (L) No1947 of 2017 the facts are that the petitioner Ritika Radhakrishnan was desirous of pursuing education in the

undergraduate course, namely, MBBSÂ She has impleaded in the writ petition, the State of Maharashtra and the Directorate of Medical Education

and Research She has also impleaded an authority styled as Commissioner, Common Entrance Cell, Mumbai It is stated that the first respondent

State is in overall control and supervises the conduct of medical education in the State of Maharashtra The second respondent is a Directorate set up

by the State styled as Directorate of Medical Education and Research It is monitoring and supervising the working of Medical and Dental colleges

in the State of Maharashtra  It is stated that the third respondent, Common Entrance Test Cell, Commissioner (for short “The Commissionerâ€)

is responsible for conducting the admission process for all Health Science Courses in the State of Maharashtra.

8Â There was a National Eligibility-Cum-Entrance Test which is mandatory for admission to health science courses all over India and specially the

MBBS course The petitioner appeared for such an examination / test and says that she has cleared it with 9843 percentile score It is stated that

she completed her tenth standard (“for short SSC†) from within the State of Maharashtra and particularly in the city of Mumbai She is also

domiciled in the State of Maharashtra However, for the Higher Secondary Certificate, namely, twelfth standard examination, she appeared from a

School / Institution situate in the State of Kerala.

9 She came across, what is styled as an Information Brochure We would have to say something about this document for it is primarily

responsible for the confusion and chaos prevailing in the State of Maharashtra The third respondent â€" Commissioner published this Information

Brochure of preference system for admission to health science courses in State Government / Corporation / Private and Minority Colleges for MBBS

/ BDS / BAMS / BHMS / BUMS / BPTh and other courses It is titled as NEET UGâ€"2018 It says that it is for prescribing a schedule and for

the admission process There are various stages after declaration of the results of the National Eligibility Test These are enlisted prior to the

introductory portion It is stated that the Medical Council of India published a Gazette dated 23rd June, 2017 Clause 5(A) regarding common

counselling is,  therefore, added therein Then it says that insofar as the process  is concerned, eighty five per cent seats are earmarked for

students in the State of Maharashtra Fifteen per cent are styled as 'All India Quota' or percentage of seats.Â

10Â The Information Brochure says that merit list for seats under State Quota of Maharashtra will be prepared and that will be operative 11Â There

are various definitions set out in this Information Brochure and particularly in clause 3 thereof The “Act†is a word defined to mean the

Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admissions and Fees) Act, 2015 (for short 'Maharashtra Act

NoXXVIII of 2015') Then there is a definition of the term 'CAP Seats', CAP Students' and 'Common Admission Process' That is, according to

this definition, a process for admission carried out by the competent authority / the Commissioner The course means the Undergraduate Medical

Course or Undergraduate Dental Course, as the case may be, conducted in the State as per approval of the Medical Council of India and Dental

Council of India and affiliated to the Maharashtra University of Health Sciences The term 'Eligible Candidates' is defined in clause 3 sub-clause (h)

to mean a candidate who is eligible for different professional courses as notified by the Government from time to time under sub-section (1) of section

3 of the Maharashtra Act XXVIII of 2015.

12Â The following definitions are relevant for our purpose:

“ … …

i “HSC†means the Higher Secondary School Certificate (Standard XII) examination conducted by Maharashtra State Board of Secondary and

Higher Secondary Education as per the provisions of the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965 (Mah XLI of

1985) or its equivalent certificate awarded by a recognised Board;

j “Institutional Quota†means seats available for admission to eligible Candidates at Institution level as declared by the Government for

appropriate authority from time to time; … … …

o “National Eligibility-cum-Entrance Testâ€​ or “NEETâ€​ means the examination conducted by Central Board of Secondary Education, Delhi for

admission to under graduate Medical and Dental courses p “Non-Resident Indian (NRI)†means a person who is “not ordinarily resident'

under sub-section 6 of the Income Tax Act, 1961, and includes a person resident outside India under clause (w) of the Foreign Exchange

Management Act, 1999, and also includes his child or ward;

q “Overseas Citizen of India (OCI)†means a candidate or a person registered as an Overseas Citizen of India as declared by the Central

Government under section 7A of the Citizenship Act 1955, and includes Persons of India Origin (PIO) Explanation-For the purposes of this clause, all

the existing Persons of Indian Origin (PIO) card-holders registered under Notification of the Government of India, Ministry of Home Affairs NoFNo

26011/04/98FI, dated 19th August 2002 and shall now be deemed to be Overseas Citizens of India, (OCI) cardholders by virtue of Notification of

Government of India, Ministry of Home Affairs No 25024/9/2014-FI, dated 9th January 2015;

r “Qualifying Examination†means the Higher Secondary Certificate (12th Standard) or equivalent examination, from an Institution situated in

the State of Maharashtra with English, Physics, Chemistry and Biology (Botany and Zoology) at the time of admission;

s … … …

t “SSC†means the Secondary School Certificate (Standard X) examination conducted by Maharashtra State Board of Secondary and Higher

Secondary Education as per the provisions of the Maharashtra Secondary and High Secondary Education Boards Act, 1965 (Mah XLI of 1965) or its

equivalent certificate awarded by a recognised Board;â€​

13 Since the petitions impugn some sub-clauses of clause 4, we deem it appropriate to reproduce the entire clause 4 with its sub-clauses for a better

appreciation of the whole matter.Â

“4 ELIGIBILITY FOR ADMISSION TO HEALTH SCIENCES DEGREE COURSES

41 The candidate must be an Indian National However Non Resident Indian (NRI) will be eligible only on all India basis in private unaided college

in NRO Quota   411 Indian Citizen 412 Overseas Citizen of India (OCI) Candidates will be eligible for Government / Corporation /

Government Aided / Private unaided college for academic year 2018-19 and 2019-20 only Provided such candidate have passed 10th & 12th from

the State of Maharashtra and should be domicile of Maharashtra or staying in State of Maharashtra for minimum period of 10 years. (As per

Annexure â€" M)

413 NRI candidates will be eligible for institutional quota seat only, NRI candidate will not be eligible for other seat. (As per Annexure-U)

42 Domicile of Candidate: - The Candidates must be Domicile of Maharashtra .(Except candidates under clause 4Â 13, 47, 48, Annexure C and E)

43 The candidate must be born on or before 31st December 2001 to be eligible for all the courses except Ayurved and Unani courses However,

for admission to Ayurved and Unani courses, candidate must be born on or before 1st October, 2001Â The Birth certificate indicating name of the

candidate, Secondary School Certificate ie SSC or equivalent examination certificate or School Leaving Certificate endorsing the date of birth will

constitute a valid proof.

44Â The candidate must be medically fit and must submit a certificate of medical fitness at the time of Document Verification as per proforma.

(Annexure-â€​Hâ€​)

45Â The candidate must have passed the SSC or equivalent examination from an institution situated in the State of Maharashtra. (Please refer 47, 48,

Annexure “Câ€​ & Annexure “â€​ for exception)

46Â The candidate must have passed the qualifying examination ie Higher Secondary Certificate (HSC/12th Standard) or equivalent examination

from an Institution situated in the State of Maharashtra Please refer 47, 48, Annexure “C†& Annexure “E†for exception) with English,

Physics, Chemistry and Biology (Botany & Zoology) at the time of document verification.

461Â Eligibility criteria for Qualifying Examination for various courses.

4611Â For MBBS/BDS/BAMS/BUMS, A candidate belonging to Open Category must have obtained not less than 50% (ie 150 out of 300) marks in

Physics, Chemistry and Biology taken together at the HSC (or equivalent) Examination A candidate belonging to constitutional reservation (Annex

B) and constitutional reservation with Person with disability claim must have obtained not less than 40% (ie 120 out of 300) marks in Physics,

Chemistry and Biology taken together at the HSC (or equivalent) Examination Person with disability candidate in General category must secure not

less than 45% marks (ie 135 out of 300) marks in Physics, Chemistry and Biology (PCB) taken together at the HSC (or equivalent) Examination .

4612 For BSc Nursing â€" A candidate should have passed in the subjects of PCB and English individually and must have obtained a minimum of

45% marks taken together in PCB at the qualified examination ie (10 + 2) Furthermore, the candidates belonging to SC/ST or other backward classes,

the marks obtained in PCB taken together in qualifying examination be 40% instead of 45% stated above English is a compulsory subject in 10 + 2

for being eligible for admission to BSC (N) OR as prescribed by the Indian Nursing Council from time to time 4613Â For BIMS, BPTh, BOTh,

BASLP & BP & O Courses, Clause 4611 is nto applicable Passing grade at HSC/12th Standard or equivalent examination is however necessary

4614Â For admission to BP&O candidates who have passed 12th standard examination with Physics, Chemistry, Biology and/or Mathematics are

eligible 4615Â For admission to BASLP, candidates who have passed 12th standard examination with Physics, Chemistry, Biology and / or

Mathematics and/or Computer Science are eligible.â€​

14Â The petitioner then says that she was born in the State of Maharashtra at Mumbai on 22nd February, 2000Â A copy of her birth certificate is

annexed to the petition as Exhibit-A The petitioner says that she continued to reside in Maharashtra and is in fact, domiciled in Maharashtra Exhibit-

B is a copy of the Domicile Certificate issued by the Tahsildar and Executive Magistrate, Taluka Borivali, Mumbai Suburban District The petitioner

then continues her narration and with regard to her schooling and fees; that she completed her class tenth (SSC) and obtained that certificate in

Mumbai from an Educational Institution situate at Kandivali East, Mumbai on 6th May, 2016 Annexed as Exhibit-C is a copy of this SSC certificateÂ

Then she says that due to some reasons, she was sent by her parents to pursue her class eleventh and class twelfth studies in the State of Kerala at St

Anthony's Public School in Kanjirapally, Kottayam in the State of Kerala She completed her education in class eleventh and class twelfth with the

Science subjects on 30th May, 2018 She relies upon Exhibit-D to substantiate her clearance of this HSC / class twelfth examination.

15 Â The petitioner then says that she appeared for the NEET in the year 2018Â The results were declared and she scored the above stated

percentile marks She obtained an All India Rank of 19653 Since the petitioner has done well in this NEET and was desirous of pursuing her goal

of becoming a doctor, she obtained a copy of the Information Brochure from the State authorities and particularly the respondent No3.

16Â On a perusal thereof, it became clear that there are meritorious high ranking students and she would be held to be ineligible for admission to the

MBBS course from the State Quota (Maharashtra Government 85% Quota of seats) only because she has not cleared and passed her qualifying

examination from within the State of Maharashtra, but outside . Â

17Â It is in the above circumstances, on several grounds, she has challenged the said clause 4, particularly its sub-clause 46 reproduced above on the

ground that the same is illegal and unconstitutional The consequential relief is, therefore, a writ of mandamus which should go to the authorities to

accept the petitioner's application form for admission to Health Science Courses for the academic year 2018-19, process the same from the State

Quota and grant her admission to any Educational Institution imparting this course within the State of Maharashtra . Â

18Â That is how the consequential prayers (b) and (c) read.

19Â When this writ petition was placed before us, it was brought to our notice that the issue is raised in several petitions pending before the

Aurangabad Bench Our attention was also invited to a notice issued by the Commissioner - third respondent to this petition on 13th June, 2018Â

After perusing the same, and a copy of the order passed by the Nagpur Bench of this Court on this petition, an order was passed by us on 19th June,

2018 which reads as under :

“In this Petition the issue raised is of legality and validity of Rule 45 and Rule 417 of the Rules and which are styled as the NEET-UG-2018 Rules

contained in the Information Brochure of Preference System for admission to Health Sciences Course in State Government / Corporation / Private

and Minority Colleges A copy of these Rules is annexed to the Writ Petition as Exhibit 'F' page 27 and the impugned Rules appear at pages 34 and

38 of the paperbook.

 2 Our attention has been drawn by the learned AGP to a notice which has been issued by the Commissioner and the Competent Authority, State

Common Entrance Test Cell, Mumbai This Notice reads as under :-

As mentioned in Information Brochure of NEET-UG2018 for admission to State Quota in Health Sciences Courses in the State of Maharashtra the

eligibilities are mentioned in Rule No 42, 45 and 46 as under :-

The student must be domiciled in the State of Maharashtra and must have passed the SSC and HSC examination from an Institution situated in the

State of Maharashtra.

Hon'ble High Court, Bombay, Bench at Nagpur directed in interim order dated 11/06/2018 in Writ Petition No 3164/2018 & Others as under -

The Candidate who have passed SSC or equivalent examination from an Institution situated outside the State of Maharashtra is also eligible subject to

final decision in said petition, provided he/she has passed HSC or qualifying examination from an Institution situated in the State of Maharashtra and

also possess Domicile Certificate of the State of Maharashtra.

All such candidates who become eligible as per Hon'ble High Court order and could not fill online registration form till 12/06/2018 of NEET-UG-2018

for Maharashtra State Quota can register online from 13/06/2018 to 17/06/2018 However, the last date ie 17/06/2018 will not be extended.

3Â In view of this notice the grievance of the Petitioners in these Petitions has been redressed, of course subject to the final orders in the pending

Writ Petitions 4Â Ms Kantharia, Govt Pleader and Ms Chavan, AGP would submit that we should not pass any order in terms of the above notice

because in this Petition the facts are not the same This Petitioner has not passed the HSC (12th Std Examination) from the State of Maharashtra,

but elsewhere Hence he is not eligible at all In the other Petitions the Petitioners had passed the 12th Std qualifying Examination in the State of

Maharashtra but had not passed their 10th Std Examination from the State and hence they are protected  Therefore, in this Petition we should not

pass any interim orders 5 At this stage, we are unable to accept this contention and for the simple reason that if the Petitioner has challenged

the constitutional validity and legality of the same Rules in the Brochure, then, we cannot make any distinction as pointed out by Ms Kantharia and Ms

Chavan Hence, we pass the same interim order passed today in Writ Petition No 6339 of 2018 a/w Writ Petition No 6340 of 2018 a/w Writ Petition

No 6372 of 2018 and Writ Petition No 6385 of 2018, in this Petition as well.â€​

20Â In this order itself we had noted that though the petitioner claims that she has been admitted, it is, of course, subject to the final orders in the

petition The above order was passed in the presence of the petitioner's advocate and by that order, time was granted to the respondents to file their

affidavit There are other petitions which were tagged along with the same and in that regard, we had passed a further order on 12th July, 2018Â That

order reads as under :

“1 At the request of Ms Chavan-AGP appearing for the State, we place these matters, which involve a common question, on 23rd July, 2018

peremptorily only not to inconvenience those students, who have been allowed to participate in the on going admission process on the basis of an

interim order of this court It is too well settled that no provisional admissions should be granted nor by interim orders, this court should allow

students to be admitted for that creates a confusion and chaos and throws the whole system out of gear We do not wish to continue such

arrangement and for the whole academic year With this prime concern, we have called the Director of Medical Education and Research to remain

present in this court today On instructions from the said Director, it is stated by Ms Chavan-AGP that an affidavit in reply common to the issue

raised in all these petitions would be filed on or before 20th July, 2018 with advance copy to the petitioners' advocate.

2 We place these matters on 23rd July, 2018 at 300 pm Let the Director also ensure that a notice is issued on their website as also an intimation is

duly forwarded to the students, who have not filed petitions that this court is considering this issue and that they are free to remain present and

canvass their submissions.â€​

21Â It is in pursuance of these two orders that the writ petitions from the Aurangabad Bench of this Court were called for and the writ petitions filed

on the Original Side and Appellate Side of this Court as also from Aurangabad Bench were clubbed together and by an administrative order of the

Hon'ble the Acting Chief Justice, each of these petitions were assigned to this Bench for disposal .

22 In response to this petition, the common affidavit came to be filed and that is affirmed by Dr Pravin H Shingare, Director, Medical Education

and Research This affidavit is filed on the basis of the documents available with his office He says that he has perused the copy of the petition

and understood the challenge It is stated that the consolidated affidavit is filed in respect of the legal issue It is claimed that though this legal issue

has been repeatedly answered by this Court in favour of the State, but such petitions continue to be filed.

23Â With regard to Writ Petition No3164 of 2018 filed before the Nagpur Bench of this Court by one Khushabu s/o Ravindra Ghongade, it is stated

that the said student passed SSC Examination from a Institution outside the State and was claiming a right to be considered for admission to Health

Science Courses in the eighty five per cent State Quota On 11th June, 2018, ad-interim order was passed by this Court, sitting at Nagpur Bench,

directing the respondents to that petition to accept the application of the petitioner and to process the same in the State Quota . Â

24Â On 13th June, 2018, that Writ Petition came before a Division Bench at Nagpur and it passed the following order :

“1 Heard

2 The forms of petitioners for admission to MBBS degree have not been entertained on the ground that they have passed SSC out of MaharashtraÂ

Screen-shot mentioning this contains reference to point No26 ie reference to clause 47 or 48 in information brochure This clause appears to be

inconsistent with amendment effected on 2nd September, 2016 to Maharashtra Unaided.

Private Professional Education Institutions (Regulation of Admission in Full Time Professional Undergraduate Medical and Dental Courses)

(Amendment) Rules, 2016 Rule 5 has been amended and a provision in the shape of clause (b) enabling SSC or equivalent examination from outside

State of Maharashtra is made eligible subject to conditions stipulated therein Petitioners claim that they have satisfied these conditions.

The admission process has already started from 7th June, 2018Â .

Issue notice to respondents, returnable on 15th June, 2018 .

Learned Additional Government Pleader waives notice for respondent Nos1 to 4 in Writ Petition No3241/2018, for respondent Nos1 to 3 in Writ

Petition Nos 3242 /2018 and 3231/2018 RPAD / Hamdast for other respondents .

By ad interim order, we direct respondents â€" the Commissionerate, Common Entrance Cell and â€" the Competent Authority Common Entrance

Test Cell to forthwith take note of above mentioned amendment and to process forms of petitioners accordingly .

The respondents shall also in the interest of other students keep in mind the amended provisions .

We permit petitioners to communicate this order to respondents â€" the Commissionerate, Common Entrance Cell and â€" the Competent Authority

Common Entrance Test Cell through E-mail Steno copy.â€​

25Â It is, therefore, claimed that in pursuance of this order the aforequoted notice was published by the third respondent to this writ petitionÂ

Though the order of the Nagpur Bench does not say that the admissions were subject to the outcome of the petition, yet this notice proceeds to say

so It is claimed that, in any event, other petitions have been filed and they are pending Therefore, the issue was alive and to the knowledge of all

concerned Additionally, by virtue of this Court's further order of 12th July, 2018, reproduced above, notice has been published by this Directorate

informing all students that the issue is being examined by this Court and any ad-hoc or interim arrangement with regard to their admission would be

subject to the final order of this Court .

 26 It is then explained that the order passed on 13th June, 2018, by the Nagpur Bench of this Court fails to take into consideration that there is a

non obstinate clause and the order proceeds to take note of a clause which was applicable only for the academic year 2016-17Â Therefore, the order

was based on the understanding of that clause, but the parties persuaded the Nagpur to pass the afore quoted interim order As far as the present

case is concerned, the State Government reiterates that it intends to enforce the alleged offending clause It is then claimed that though the Nagpur

Bench proceeded to dispose of the pending petitions before it on 15th June, 2018, that was on a concession of the Assistant Government PleaderÂ

That Assistant Government Pleader made a statement based on the instructions given by the Commissioner The Commissioner says that he is not

opposing the petition However, no such instructions were given by the State Government and the concession, therefore, does not bind the State

Government In any event, it is well settled that no amount of concession on a question of law can bind the parties, much less the State Government

Hence, its advocate may have said something, but based on that an order was passed by this Court That order records a concession on the

construction and interpretation of the impugned clause Therefore, that order, so also the concession recorded therein, would not bind the respondents

27Â In any event, the State Government is in the process of seeking a review of that order passed by the Nagpur Bench.

28Â In paragraph 11 of this affidavit it is stated as under:

“11 It is worthwhile to note the fact that pursuant to the aforesaid notice total 201 students submitted their application online, out of which 67

candidates attended document verification process in first round and out of the 67 candidates 31 candidates were selected for MBBS / BDS CourseÂ

Out of 31 selected candidates 14 are selected for Government MBBS and 11 for Private MBBS course, 01 candidate selected for Government BDS

and 05 Candidates selected for Private BDS courses I hasten to state at this juncture itself that in the aforesaid selected candidates not a single

candidate who had filed petition at the Nagpur Bench could secure admission at any Health Science Course Thus I say that the students who never

approached any Court of law aggrieved by the impugned Clauses have secured admissions and their admissions are subject to the final decision that

may be passed in the present proceedings I say that all the aforesaid students cannot claim any equity against the rules and regulations that govern

admission to the Health Science Courses.â€​

29Â It is stated that prior to the enactment of the MCI Regulations on Graduate Medical Education 1997 admissions to MBBS/BDS course were

governed by the MCI Act, 1956 and the Rules and Regulations framed by the State Government from time to time The eligibility criteria that was

then required was that the student should have passed the qualifying examination, namely, HSC or equivalent Board examination from an Institution

situate in the State of Maharashtra.

30 Later on the MCI Regulations on Graduate Medical Education 1997 came to be published They have been amended from time to time The

unamended Rule 5, as it stood in 1997, prescribed the basis for selection of the students and unamended Rule 5 of the said Regulations has been

reproduced at running page 83 paragraph 14Â That unamended clause reads as under :

“14 I say that thereafter the Medical Council of India, in the year 1997, enacted the Medical Council of India Regulations on Graduate Medical

Education, 1997 which have been amended time to time I say that the UNamended Rule 5 as it stood in 1997, prescribed the basis for selection of

students and the UN-amended Rule 5 of the Medical Council of India Regulations on Graduate Medical Education, 1997 read as under

 “5 Selection to Students:The selection of students to medical college shall be based solely on merit of the candidate and for determination of

merit, the following criteria be adopted uniformly throughout the country:Â

(1)Â In states, having only one Medical College and one university / board / examining body conducting the qualifying examination, the marks

obtained at such qualifying examination may be taken into consideration.

(2)Â In states, having more than one university / board / examining body conducting the qualifying examination (or where there is more than one

medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform

evaluation as there may be variation of standards at qualifying examinations conducted by different agencies.

(3)Â Where there are more than one colleges in a state and only one university / board conducting the qualifying examination, then a joint selection

board be constituted for all the colleges.

(4) A competitive entrance examination is absolutely necessary in the cases of Institution of All India character.â€​

… … … â€​

31Â Thus, the State Government has mentioned that it was required to conduct a Common Entrance Examination and the Government of

Maharashtra in the year 1999 for the first time conducted the Common Entrance Examination for admission to MBBS/BDS courses known as MH-

CET For that examination, the State Government framed Rules and Regulations Rule 44 framed by the Maharashtra University of Health

Sciences in the State required that the student will be eligible for admission to Health Science courses only if he or she has passed the SSC

examination from an Institution situate in the State of Maharashtra and furthermore, Rule 45 required fulfillment of a condition of eligibility to the

effect that every candidate must pass the HSC certificate or equivalent examination from an Institution situate in the State of Maharashtra It is

stated that the validity of the said Rules was challenged before this Court by one Rajiv Purshottam Wadhwa A judgment of a Division Bench in

Rajiv's case was delivered and that is reported in All Maharashtra Reporter 2001 (1) 24Â This Court held that insofar as Rule 45 enlisting the

requirement of passing of both examinations from an Institution situated in the State of Maharashtra is concerned, the same is partially valid to the

extent that the qualifying examination for admission to medical courses, namely HSC, is required to be passed from an Institution situate in the State of

Maharashtra The Court, however, granted exemption from the Rule to extent that it required a candidate to pass SSC examination also from an

Institution in the State of Maharashtra However, according to the State Government, that is restricted to academic year 2000-01

32 Later on, in 2015, Maharashtra Act XXVIII of 2015 was enacted Section 23 of that Act is relied upon to urge that the rules have been framed

and Rule 5 of the Rules under that law, which is styled as Maharashtra Un-Aided Private Professional Educational Institution (Regulation of

Admission to the Full Time Professional Undergraduate Medical and Dental Courses) Rules, 2016, sets out identical stipulations .

33Â Then, in paragraphs 18, 19 and 20, this is what is stated:-

“18 I say that the said Rule 5(1)(A) was amended by notification dated 292016 by the Maharashtra Unaided Private Professional Educational

Institutions (Regulations of Admissions to the Full Time Professional Undergraduate Medical and Dental Courses) (Amendment) Rules, 2016 .

19 I say that apart from the above referred provisions of the Maharashtra Unaided Private Professional Educational Institutions (Regulations of

Admissions to the Full Time Professional Undergraduate Medical and Dental Courses) Rules, 2016 as amended, Rule 5 of the Medical Council of

India Regulations on Graduate Medical Education, 1997 has been amended time to time thereby empowering the State Government to frame its own

eligibility criteria in respect of 85% State quota I crave leave of this Hon'ble Court to refer to and rely upon the relevant provisions of the aforesaid

regulations as and when may be required.

20Â I say that the National Eligibility Cum Entrance Test (Session 2018-19) for Admission to MBBS/ BDS Courses prescribe the criteria for

admissions to MBBS /BDS courses session 2018-19Â I say that the copy of the said Information Bulletin is already annexed in the compilation which

is filed on record by this Respondents I say that perusal of the aforesaid document would also make it clear that the State Government is

empowered to frame its Rules and Regulations in respect of the 85% state quota admissions.â€​

34Â The stand of the Government of Maharashtra is, therefore, that it is empowered to frame its own Rules and Regulations in respect of the eighty

five per cent seat Quota The eligibility criteria prescribed, namely, of passing tenth and twelfth standard examination from an Institution within the

State of Maharashtra has been upheld by this Court repeatedly and identical stipulations have been upheld also by the Hon'ble Supreme Court of

IndiaÂ

35Â Then, it is claimed that for the academic year 2017-18, the Government of Maharashtra clarified by a Government Resolution dated 13th April,

2017, that it has made the aforesaid Rules and they would be applicable, as amended, even to Government / Municipal Corporation / Aided College

imparting medical education.

36Â Then, reliance is placed on a judgment of this court in the case of Shalini Kotian vs State of Maharashtra (WP No6608 of 2016) holding that the

Maharashtra Act XV and the Rules framed thereunder can be made applicable to the State or Municipal run medical colleges .

37Â It is stated that similar Rules are framed by other States in India and instances of such Rules prevailing in the States of Gujarat, Delhi, Katakana,

Punjab, Kerala, Andra Pradesh and Attar Pradesh are referred .

38Â In paragraph 27 it is stated that the stipulations have been put in place coupled with the requirement of possessing a domicile certificate taking

into account the interest of the State, the local and regional requirements can also be taken into consideration to weed out candidates, who are not in

continuous residence within the State of Maharashtra for 15 years preceding the qualifying examination These Rules are, therefore, not violative of

the mandate of Article 14 of the Constitution of India .

39 It is stated that all candidates / students were aware of the Rules of 2016, as amended They have knowingly participated in the admission

process and, therefore, such of them who do not fulfill or satisfy the eligibility criteria cannot claim admission to the Health Science courses in the

State Quota The petitions to that extent be dismissed.Â

40Â This affidavit has been served now on all the parties, namely, the petitioners and respondents in the other petitions .

41Â It is on the above material that we have to consider the challenge, which has been raised in identical terms by one candidate, who has filed Writ

Petition No 2393 of 2017Â That writ petition was admitted by this Court, but relying upon the view taken in Rajiv P Wadhwa vs State of Maharashtra

(supra), this court declined interim relief on 11th July, 2017Â There, the petitioner claimed that her grandfather was a Government servant in the

State of Maharashtra and residing in Maharashtra since last 40 years Her father was born in 1972 in a remote village in Andhra Pradesh She has

been residing with her grandfather immediately after her birth and completed her education in the State of Maharashtra She was in Maharashtra

right from her Junior KG till tenth standard However, despite a property being acquired by her father in Maharashtra and there being no dispute

about their permanent residence in Maharashtra, still, the petitioner was unable to secure the admission on account of the stipulation that the qualifying

/ twelfth standard examination had also to be passed from within the State of Maharashtra Laying a similar challenge, this writ petition has been

filed Then, we have another petition in relation to a student which was argued before us by Mr VM Thorat and Ms Pooja Thorat That is Writ

Petition No6385 of 2018 There, the petitioner passed the tenth standard examination from out of the State However, the petitioner claims that

there were compelling circumstances in which this examination was taken from the State of Telangana The domicile having not undergone a

change, the petitioner could not have been held as ineligible only because this examination was taken and passed from outside the State of

Maharashtra However, the subsequent examinations, namely, eleventh and twelfth standard were cleared within the State of Maharashtra The

petitioner claims to have cleared the NEET examination by securing percentile of 9977 The petitioner can get any seat on the basis of this percentile,

but despite being domiciled in the State of Maharashtra, the stipulation to the above extent and namely of passing tenth standard examination from

within the State of Maharashtra, blocks her way It is, therefore, challenged accordingly.

 42 The counsel appearing for the petitioner would submit that the consistent policy of the State Government, except for the year 2000, has been

that this examination of tenth standard need not be passed from within the State of Maharashtra If the candidate fulfills the requirement of being

domiciled in the State of Maharashtra, then, this examination being passed and cleared from outside the State did not place any embargo on securing

admission in the under graduate Medical Health Science Course However, the consistent policy appears to be that the twelfth standard examination

should be taken and cleared from within the State of Maharashtra Relying upon the judgment and order passed in the case of Rajiv Wadhwa it is

urged by Mr Thorat that the policy carved out has no nexus with the object sought to be achieved If the object sought to be achieved is that a

candidate domiciled in the State of Maharashtra can only secure admission in the eighty five per cent State Quota, then, that is achieved after fulfilling

the requirement of domicile and clearing and passing of the qualifying examination This is how the State Government and the students arranged

their affairs and based on the judgment of this Court in Wadhwa's case Now, the new legislation / Rule has been put in place That necessitates

passing of the tenth and twelfth standard examination from within the State of Maharashtra and particularly in an Institution within the State This,

coupled with the requirement of domicile, would make the student/candidate eligible Thus, domicile plus tenth plus twelfth standard examination, all

being from within the State is the requirement of the new Rule This Rule violates Article 14 of the Constitution of India as there is no nexus of the

same with the object sought to be achieved The Rule is also unreasonable, in the sense, it creates a hostile discrimination The hostile discrimination

is that the students who have passed both examinations within the State of Maharashtra and are domiciled in the State of Maharashtra are in an

advantageous position, whereas candidates/students like the petitioner, though domiciled in the State of Maharashtra, have to suffer for not fulfilling

this criteria of passing, not the qualifying examination of twelfth, but tenth standard SSC from within the State Precisely this was the issue dealt with

by this Court in Wadhwa's case This Court opined that it would be wholly arbitrary, unsustainable, unfair and unjust to make such an artificial

distinction between students and candidates domiciled within the State of Maharashtra In such circumstances, it does not stand to reason as to why

an examination which is not a qualifying one has to be cleared from within the State The student like the petitioner would be deprived of a eighty

five per cent Quota or earmarking of seat for the State of Maharashtra candidates though he is a Maharashtrian in the true sense of the term.

43Â Elaborating this argument further, Mr Thorat would submit that such a stipulation is not in place for other professional courses and where also a

State Quota is carved out In the circumstances, Mr Thorat would press into service the doctrine of legitimate expectation He would submit that it is

the expectation of the parents and the students and they were consistently informed that if at all the student is seeking admission under the State

Quota, he must fulfill the requirement of passing a qualifying examination, namely, twelfth HSC from within the State Most of the students acting

upon such a policy arranged their affairs and may be for genuine and bona fide reasons, though residing outside the State for a brief period, returned

and took admission to a Educational Institution in the State of Maharashtra They completed their twelfth standard or eleventh and twelfth standards

from such an Institution in the State of Maharashtra .

44Â Alternatively and without prejudice, it is submitted that the Government of Maharashtra has accepted the judgment of this Court in Wadhwa's

case It gave up its insistence on the requirement of passing both the examinations from an Institution in the State of Maharashtra There is,

therefore, no justification on such insistence for the current academic year .

45Â In any event and further alternatively so also without prejudice to the above noted contentions, it is alleged that rightly or wrongly, the student has

been admitted His admission is not subjected to any order of the Court Now, the doors are closed to the petitioner insofar as both the Quotas,

namely, All India Quota and State Quota The whole academic year is wasted and on account of the flip-flop on the part of the State .

46 The sheet anchor of the petitioners arguments in all cases is that the above stipulation is nothing, but a departure from merit If merit is the sole

consideration for admission to even under graduate courses and that cannot be sacrificed or compromised, then, that is evidently compromised and

totally sacrificed in this case by insisting on fulfilling a requirement of passing examinations (tenth and twelfth) in addition to being a domicile If the

State Quota has a nexus or connection with the residence or domicile, then, that was a justifiable insistence That was a justifiable departure from

the Rule or principle of merit It could have, therefore, been departed from only so as to be held eligible for admission under the State Quota A

State Quota itself is permitted and as a departure from the above principle of merit so as to serve the interest of a State Repeatedly, the Hon'ble

Supreme Court has emphasized that there could be peculiar conditions prevailing in the States in this country Though it is ideal that there should be a

single examination and single meritbased admission process, that could not be achieved The object and purpose was that there should be only one

merit and one competition so that students from all over the country compete with each other while seeking admission to professional courses That

would also achieve the principle of merit and excellence in the true sense of the term The departure was permitted on limited or restricted

grounds The departure is in the nature of an exception and an exception cannot become the rule In this case, exactly reverse situation has

taken place and now the exception or departure from merit is taken as a license to impose such conditions which are oppressive, unreasonable and

incapable of being fulfilled by students who are otherwise meritorious  Bearing in mind the high percentile and the success or the rank in NEET,

such stipulations deprives a candidate from a seat within the State and he has to necessarily compete with the limited percentage of seats (15%) of

the All India Quota For all these reasons, it is submitted that this writ petition be allowed.

47 These arguments of Mr Thorat and Ms Thorat are adopted in more or less similar terms by other counsel Ms Pradnya Talekar appearing in

the writ petitions filed before the Aurangabad Bench and the intervention applications in the petitions filed at Bombay would urge, on identical lines,

that Article 14 of the Constitution guarantees equality before law and equal protection of law No rule or no stipulation of this nature is immune from

challenge on the ground of violation of the mandate of Article 14 of the Constitution of India That mandate is patently breached in this case She

would bring to our notice several judgments right from the judgment in the case of Dr Pradeep Jain delivered by the Hon'ble Supreme Court in which

it has been categorically held that nothing should be done so as to dilute the merit Here it is a clear case of dilution of merit There is an artificial

line drawn and with regard to students within the State of Maharashtra She would submit that in this case, her challenge is restricted to the

stipulation or requirement of passing tenth standard examination from within the State of Maharashtra She would submit that in this case she is

restricting it to the requirement of passing the tenth SSC examination from within the State though she has not given up her challenge or argument that

the requirement of passing both examinations would violate the constitutional mandate However, if the rules determine the class twelfth examination

as the qualifying one, then, that is cleared by most of the students from within the State of Maharashtra It is the earlier tenth examination which has

not been cleared in most of the cases However, almost all candidates are domiciled in the State of Maharashtra and that requirement being satisfied

by them, then, there is no warrant in making such a distinction as is now sought to be made by the State Government .

48Â She has tendered a compilation and while adopting the contentions of Mr Thorat and his reliance on several judgments, she would submit that the

domicile is acquired by a minor only in the circumstances known to law In the case of a minor, it is acquired by birth and it partakes the domicile of

his/her father That can be renounced once the domicile by choice is acquired on attaining the age of majority through his conduct In the case of

admissions to medical courses the word domicile is loosely used to convey the condition of intention to reside permanently in a State Such a

condition to determine intention of permanent residence, if it is imposed with the object of retention of doctors in the State, then, that is held as a

justifiable departure from merit She would submit that we must consider the challenge in the backdrop of the requirement of domicile prescribed by

the Rules  Both the conditions, namely, being a domicile and passing of qualifying examination have a nexus with the element of residence or

domicile within the State There could not be a further condition imposed as is done in this case for that would depart from the normal rule and

prescription set out in the judgments of the Hon'ble Supreme Court In exceptional circumstances, the departure from merit is permissible There is

a twin requirement in law which justifies a departure Those have already been outlined by us while noting the arguments of Mr Thorat However,

any condition in addition to what is prescribed so as to fulfill the requirement of being a resident within the State would necessarily have to be frowned

upon for that is nothing, but a whittling down of merit She would submit that the condition of domicile as understood in the sense of intention of

permanent residence in a State is a wholesome condition considering every aspect of the matter She would rely upon a Government Resolution

dated 27th September, 1950 issued by the Government of Bombay, Political and Services Department She would submit that this is a

comprehensive document enlisting the rules, questionnaire and instructions for the determination of domicile She would refer to this in details as it

contains three parts Part one is the Rule, part two is a domicile questionnaire and part three contains the instructions She would submit that

Instructions 1 to 9 comprehend everything in relation to a domicile They encompass everything including the element of education within the

State Thus, there is no independent requirement which can be stipulated and this Government Resolution should be taken as a all pervasive

document on domicile That being a proof of residing in Maharashtra for not less than ten years at the relevant time, strongly supports a claim of

being educated within the State She would submit that the Government Resolution dated 31st March, 2012, merely prescribes the current form in

which an application for issuance of a domicile certificate has to be granted However, the nature of the inquiry remains the same It is on the

same lines as indicated in the Government Resolution dated 27th September, 1950 Thereafter, a further sub-classification of persons who have passed

SSC examination from within the State defeats the very object of the eligibility conditions in terms of intention of permanent residence and that dilutes

merit It fails to satisfy the test laid down by the Hon'ble Supreme Court on a touchstone of Article 14 of the  Constitution of India An attempt

has been made by Ms Talekar to distinguish the judgments of the Hon'ble Supreme Court already rendered on the point She would submit that the

binding nature of the said judgments, once they have been wrongly understood and applied by the State of Maharashtra in the instant case keeps the

challenge still open It is stated that the claim of the petitioner should be considered in the eighty five per cent seats reserved for State Quota has its

source in the principle of equality Once all the students form a class, the further sub-classification amongst them, namely, domiciled but not

educated in tenth and twelfth standards in Maharashtra would mean that though eligible in terms of their rank and standing in the merit list, they would

stand excluded for not fulfilling one of the requirement A major chunk of the seats are completely unavailable for them They have to necessarily

fight for a berth or place in the fifteen per cent All India Quota .

This is also a discrimination and against students who are all belonging to the same State In such circumstances, she would submit that the

requirement that is set out so as to be held eligible to participate in the fifteen per cent Quota round be also applied so that no discrimination is

permissible She would submit and alternatively that the Rule debarring the students who have completed SSC from a school outside the state of

Maharashtra was taken to be an onerous condition It cannot be made applicable retrospectively In that regard, she relies upon an order passed by

this Court's Bench at Aurangabad in Writ Petition No 8268 of 2017Â She would further alternatively submit that without any fetter or restriction or

embargo, the respondents have allowed the petitioners to participate in the counselling process and they have been admitted in the allotted colleges

They have paid the necessary fees Thus, they have acted upon the assurance given by the State and to their detriment Even the principle of

promissory estoppel would come to their aid  .

49Â In support of the above contentions, Mr Thorat and Ms Talekar relied upon the following judgments:

JUDGMENTS RELIED UPON BY MR THORAT :

(i)Â (1999) 8 SCC 139 Ahmedabad Municipal Corporation & Anr vs Nilaybhai R Thakore & Anr.

(ii)Â 2000 SCC Online Bom 359 Rajiv Purshottam Wadhwa vs State of Maharashtra & Ors.

(iii)Â Writ Petition No 8268 of 2017 & other matters, Aalia Kausar Mohammed Shafee vs State of Maharashtra & Ors.

(iv)Â (1989) 1 SCC 399 Ashok Chand Singhvi vs University of Jodhpur & Ors.

(v)Â (2011) 3 SCC 617 Chowdhury Navin Hemabhai & Ors vs State of Gujarat & Ors.

(vi)Â 1986 (Supp) SCC 740 Rajendra Prasad Mathur vs Karnataka University & Anr.

(vii)Â (1987) 4 SCC 537 A Sudha vs University of Mysore & Anr.

(Viii) (2005) 13 SCC 677 MA Salam (II) vs Principal Secretary, Government of AP & Ors.

JUDGMENTS RELIED UPON BY MS TALEKAR :

(i)Â (2016) 7 SCC 353 Modern Dental College & Research Center & Ors vs State of Madhya Pradesh & Ors.

(ii)Â Writ Petition No 5847 of 2018 Shridhar Vishnu Gadekar vs The State of Maharashtra & Ors.

(iii)Â (1968) 2 SCR 786 Minor P Rajendran vs State of Maharashtra & Ors.

(iv) AIR 1968 SC 1012 Minor A Peeriakaruppan vs State of Tamil Nadu.

(v)Â (1986) 2 SCC 534 Nidamarti Maheshkumar vs State of Maharashtra & Ors.

(vi)Â (1972) 1 SCC 660 The State of AP vs USV Balram etc.

(vii)Â (1993) 1 SCC 645 Unni Krishnan vs State of Andhra Pradesh viii) (1997) 10 SCC 549 Bandhua Mukt Moracha vs Union of India.

(ix)Â Writ Petition No 5898 of 2010 Rajendra Kamble vs Government of Maharashtra.

(x)Â (2015)1 SCC CIT vs Vatika Township Pvt Ltd.

(xi)Â 1993 Mah LJ 292 Kush Damodar Jhunjhunwala vs State of Maharashtra & Ors.

(xii)Â (1992) 4 SCC 477 Navjyoti Coop Housing Society & Ors vs Union of India & Ors.

(xiii)Â AIR 1952 SC 75 State of West Bengal vs Anwar Ali Sarkar.

(xiv)Â Writ Petition No8268 of 2017 Aalia Kausar Mohammed Shafee vs State of Maharashtra.

(xv)Â SLP (C) 19277 of 2017 & Review Application (Civil) 212 of 2017 Ahana Abhijit Deodhar & Ors v The State of Maharashtra.

(xvi)Â SLP (C) D25623/2017 The State of Maharashtra vs Aalia Kausar Mohammed Shafee.

50 In the lead matter in which the affidavit is filed, we have heard Mr CR Naidu, learned advocate as well He sought to rely upon the Rules

under the Maharashtra Act XXVIII of 2015 It is urged that there is an apparent contradiction in the same and in the Information Brochure Though

an argument has been built upon the competence of the State Government to frame Rules, it is urged by Mr Naidu that if Article 162 is not the source

of the power, then, the only provision from which the power is derived is to be found in section 28 of Maharashtra Act of 2015 and the Rules framed

thereunder He would submit that they also are not in harmony and insofar as the requirement of passing tenth standard examination from within the

State He would, therefore, while adopting the arguments of the other counsel, rely on this position as well.

51Â The other petitioners' advocates have more or less adopted above line of argument and we need not, therefore, specifically set out the same .

52Â On behalf of the respondents, the learned Advocate General submitted that the challenge raised in these petitions has been considered on several

occasions by this Court He would submit that the same is raised repeatedly only to cause chaos and confusion None of the arguments that have

been canvassed can be termed as a novel proposition Each one of them have been considered and repeatedly turned down by either the Hon'ble

Supreme Court or this Court or other High Courts  The consistent view is that a stipulation of the nature made by the State of Maharashtra in the

current rules or in the rules for the current academic session 2018-19 has been held to be valid He would heavily rely upon the judgment of the

Hon'ble Supreme Court in the case of Anant Madaan (supra) to urge that an identical rule / regulation / clause which required passing of examinations

coupled with domicile so as to be held eligible for admission are upheld He would submit that without or with the requirement of domicile the

requirement of passing one of the examination has also been upheld by this Court and he has tendered a compilation of judgments in that regard The

learned Advocate General would submit that there is nothing new in this challenge and we must follow the binding precedents and dismiss these

petitions.

53 As far as the alternate argument is concerned, the Advocate General fairly stated that the fault lies entirely with the State It is the State

Government's mistake which led the students to believe that in the current academic year, despite such pre-conditions, as are now challenged and

impugned, they can secure admission It may be an impression given by one of the officials of the State, but once the petitioners know the legal

position throughout, namely, rejection of the challenge to the Rules, then, it does not lie in their mouth to say that they are innocent or victims of

uncertainty Thus, they cannot play the victim card Each of the students and their parents were aware that in the State of Maharashtra for

securing admission under the eighty five per cent State Quota, they have to be domiciled in the State of Maharashtra and must pass the tenth and

twelfth standard examination from an Institution within the State of Maharashtra Despite knowing that position, they proceeded to take admissions

in the State Quota and may be relying on a notice issued by the third respondent However, the lack of coordination, if any, between the State

Departments or Cells would not confer a right on the petitioners to secure admissions to the undergraduate courses in the State of Maharashtra for

which they otherwise are ineligible The learned Advocate General, with the assistance of some charts and statistics, would submit that even the

minuscule number of students who have taken admission and claim to have paid the fees or reported to the college, were aware of the pendency of

the petitions and the challenge In the circumstances, neither the principle of legitimate expectation nor promissory estoppel nor the broad

considerations of equity, justice and fair play would come to their aid The law is plainly against them and must be implemented at any cost It is

also to protect the interest of the State that the law must be upheld.

54Â Mr MM Vashi, learned senior counsel appearing for some of the intervenors, supporting the State Government, would urge that this Court should

not show any mercy to students who are throughout aware of the requirement They, as also their predecessors, who are now either undergraduates

or doctors, were aware from 1997 at least that there are stipulations in place in the State of Maharashtra and if you satisfy these stipulations and

requirements, only then you are eligible for admission to the Health Science Courses and not otherwise Now, on grounds of sympathy or equity they

cannot claim a relief contrary to law Therefore, for the protection of the students who fulfill both requirements from within the State and are awaiting

the fruits of their efforts and their ranking in the merit, the petitions should be dismissed Even the alternate relief sought should not be granted.

55Â For properly appreciating these contentions, we have to first refer to the leading judgment of the Hon'ble Supreme Court in the case of Dr

Pradeep Jain & Ors vs Union of India & Ors reported in (1984) 3 SCC 654Â Â The group of petitions before the Hon'ble Supreme Court raised a

challenge to the requirement of domicile In other words, whether the policy of sons of the soil and whether reserving seats on the basis of residence

or place of birth would result in a discrimination while seeking admission to a medical college The Hon'ble Supreme Court was considering a very

wide challenge The argument was that almost all seats prescribe residence requirement for admission to medical college It is summarized by saying

that the candidate must have a domicile in the State The Hon'ble Supreme Court frowned upon the use of the word 'domicile' Then, enlisting this

principle and the contours of the same, the Hon'ble Supreme Court in paragraph 9 observed that Pradeep Jain is seeking admission to MDS course in

King George's Medical College Lucknow affiliated to the Lucknow University There were provisional admissions granted However, the petitions

challenging constitutional validity of residential requirement and institutional preference in regard to medical colleges in the States of Karnataka and

Uttar Pradesh and the Union Territory of Delhi were placed together with the civil appeals The consistent practice adopted by all the States was,

therefore, put in issue The principal contention was that residential requirement or institutional preference in admissions to technical and medical

colleges is constitutionally impermissible That does not stand the test of Article 14 and falls fowl of its mandate They ought to be, therefore, struck

down While noting this issue, the Hon'ble Supreme Court, in paragraph 9 observed that it is for admission to MBBS course, domicile or permanent

residence is required In some States residence for a specified number of years ranging from three to twenty years is required while in some other

States and in a few States the requirement is that the candidate should have studied in an educational Institution in the State for a continuous period

varying from four to ten years or the candidate should be a bona fide resident of one State and in case of admissions to MDS course in Uttar Pradesh,

the candidate should be either a citizen of India, domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh or a

citizen of India, domicile of whose father may not be in Uttar Pradesh, but who himself has been resided in Uttar Pradesh for not less than five years

at the time of making the application and so far as admissions to MDS course in Karnataka are concerned, the candidate should have studied for at

least five years in an educational institution in the State of Karnataka prior to his joining BDS course The Hon'ble Supreme Court then referred to

its judgment in the case of Jagdish Saran vs Union of India reported in (1980) 2 SCR 831Â After referring to it, in paragraph 10, the Hon'ble Supreme

Court held that the primary consideration in selection of candidates for admission to the medical colleges must, therefore, be merit The publication

of any Rules which may be made for regulating admissions to the medical colleges must be to secure the best and most meritorious students This

was the consideration which weighed with the Court even when it rendered its earlier decision, namely, in the case of Minor P Rajendran vs State of

Madras reported in AIR 1968 SC 801 and A Peeriakaruppan vs State of Tamil Nadu reported in AIR 1971 SC 2303Â The Hon'ble Supreme Court

then said that while it is true that merit cannot be measured in terms of marks alone, but human sympathies are equally important while determining

merit for selection of candidates for admission to medical colleges though it is not easy, one factor cannot be left out of consideration That factor is

then referred in paragraph 13 and departure on justifiable grounds from the principle of selection based on merit is then discussed The Hon'ble

Supreme Court held that the scheme of admission to medical colleges may, therefore, depart from the principle of selection based on merit where it is

necessary to do so for the purpose of bringing about real equality or opportunity between those who are unequals Thus, the considerations which

appear to have weighed with the Hon'ble Supreme Court in justifying this departure is first the interest of the State and the other is a region's claim of

backwardness The legitimacy of the claim of State interest was recognised in the earliest decision in the case of DP Joshi vs State of Madhya

Bharat (supra)Â After referring to all these judgments, eventually the Hon'ble Supreme Court held that if such Rules, as are framed, consisting of

residential requirement within the State have an object and that is to impart medical education to the best talent available out of the class of persons

who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of that State The State, therefore, has to formulate with

reasonable foresight a just scheme with adequate means of livelihood, but to provide the much needed medical aid to the people and to improve public

health generally With this aim and object in mind, the Hon'ble Supreme Court concluded that there could be a departure from the rule of merit and

that principle or rule can be relaxed so as to protect the interest of the State Thereafter the principle of regional backwardness has been discussed and

in paragraph 19, the Hon'ble Supreme Court concludes as under :

“19 It will be noticed from the above discussion that though intra-state discrimination between persons resident in different districts or regions of a

State has by an large been frowned upon by the court and struck down as invalid as in Minor P Rajendran's case and Perukaruppan's case, the Court

has in DN Chanchalla's case and other similar cases up-held institutional reservation effected through university wise distribution of seats for

admission to medical colleges The Court has also by its decisions in DP Joshi's case and N Vasundhara's case sustained the constitutional validity of

reservation based on residence within a State for the purpose of admission to medical college These decisions which all relate to admission to MBBS

course are binding upon us and it is therefore not possible for us to hold, in the face of these decisions, that residence requirement in at State for

admission to MBBS course is irrational and irrelevant and cannot be introduced as a condition for admission without violating the mandate of equality

of opportunity contained in Article 14 We must proceed on the basis that at least so far as admission to MBBS course is concerned, residence

requirement in a State can be introduced as a condition for admission to the MBBS course It is of course true that the Medical Education Review

Committee established by the Government of India has in its report recommended after taking into account all relevant considerations, that the ""final

objective should be to ensure that all admissions to the MBBS course should be open to candidates on an All India basis without the imposition of

existing domiciliary condition,"" but having regard to the practical difficulties of transition to the stage where admissions to MBBS course in all medical

colleges would be on all India basis, the medical Education Review Committee has suggested ""that to begin with not less than 25 per cent seats in

each institution may be open to candidates on all India basis"" We are not all sure whether at the present stage it would be consistent with the mandate

of equality in its broader dynamic sense to provide that admissions to the MBBS course in all medical colleges in the country should be on all India

basis Theoretically, of course, if admissions are given on the basis of all India national entrance examination, each individual would have equal

opportunity of securing admission, but that would not take into account diverse consideration, such as, differing level of social, economic and

educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States,

difficulties which may be experienced by students from one region who might in the competition on all India basis get admission to the MBBS course

in another region far remote from their own and other allied factors There can be no doubt that the policy of ensuring admissions to the MBBS course

on all India basis is a highly desirable policy, based as it is on the postulate that India is one national and every citizen of India is entitled to have equal

opportunity for education and advancement, but it is an ideal to be aimed at and it may not be realistically possible in the present circumstances, to

adopt it, for it cannot produce real equality of opportunity unless there is complete absence of disparities and inequalities a situation which simply does

not exist in the country today There are massive social and economic disparities and inequalities not only between the States and States but also

between region and region within a state and even between citizens and citizens within the same region There is a yawning gap between the rich and

the poor and there are so many disabilities and injustices from which the poor suffer as a class that they cannot avail themselves of any opportunities

which may in law be open to them They do not have the social and material resources to take advantage of these opportunities which remain merely

on paper recognised by law but non-existent in fact Students from backward States or regions will hardly be able to compete with those from

advanced States or regions because, though possessing an intelligent mind, they would have had no adequate opportunities for development so as to be

in a position to compete with others So also students belonging to the weaker sections who have not, by reason of their socially or economically

disadvantaged position, been able to secure education in good schools would be at a disadvantage compared to students belonging to the affluent or

well-to-do families who have had the best of school education and in open All India competition, they would be likely to be worsted There would also

be a number of students who, if they do not get admission in a medical college near their residence and are assigned admission in a far off college in

another State as a result of open All India competition, may not be able to go to such other college on account of leak of resources and facilities and in

the result, they would be effectively deprived of a real opportunity for pursing the medical course even though on paper they would have got admission

in a medical college It would be tantamount to telling these students that they are given an opportunity of taking up the medical course, but if they

cannot afford it by reason of the medical college to which they are admitted being far away in another State, it is their bad luck: the State cannot help

it, because the State has done all that it could, namely, provide equal opportunity to all for medical education But the question is whether the

opportunity provided is real or illusory? We are therefore of the view that a certain percentage of reservation on the basis of residence requirement

may legitimately be made in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and

not merely legal, equality The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or

pre-medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the

medical colleges in the State and for this purpose, there should be no distinction between schools affiliated to State Board and schools affiliated to the

Central Board of Secondary Education, It would be constitutionally permissible to provide, as an interim measure until we reach the stage when we

can consistently with the broad mandate of the rule of equality in the larger sense; ensure admissions to the MBBS course on the basis of national

entrance examination an ideal which we must increasingly strive to reach for reservation of a certain percentage of seats in the medical colleges for

students satisfying a prescribed residence requirement as also for students who have passed PUC or pre-medical examination or any other qualifying

examination held by the university or the State and for this purpose it should make no difference whether the qualifying examination is conducted by

the State Board or by the Central Board of Secondary Education, because no discrimination can be made between schools affiliated can be made

between schools affiliated to the Central Board of Secondary Education We may point out that at the close of the arguments we asked the learned

Attorney General to inform the court as to what was the stand of the Government of India in the matter of such reservation and the learned Attorney

General in response to the inquiry made by the Court filed a policy statement which contained the following formulation of the policy of the

Government of India:

Central Government is generally opposed to the principle of reservation based on domicile or residence for admission to institution of higher education,

whether professional or otherwise In view of the territorially articulated nature of the system of institutions of higher learning including institutions of

professional education, there is no objection, however, to stipulating reservation or preference for a reasonable quantum in under-graduate courses for

students hailing from the school system of educational hinterland of the institutions For this purpose, there should be no distinction between schools

affiliated to CBSC.

We are glad to find that the policy of the Government of India in the matter of reservation based on residence requirement and institutional preference

accords with the view taken by us in that behalf We may point out that even if at some stage it is decided to regulate admissions to the MBBS course

on the basis of All India Entrance Examination, some provision would have to be made for allocation of seats amongst the selected candidates on the

basis of residence or institutional affiliation so as to take into account the aforementioned factors.â€​

56Â Â This and the subsequent paragraph has been heavily relied upon by the petitioners' counsel to urge that there is an extent to which the

residential requirement can be prescribed and equally institutional preference This cannot completely exclude admissions of students from other

Universities and States on the basis of merit which is on open competition However, in subsequent paragraphs, the State Government's difficulties are

noted and then the percentage carved out It is not disputed before us that the percentage today is eighty five per cent seats from within the State

and fifteen percent on All India basis This is how the seats have to be filled in However, we find that assuming that everything has a correlation

or nexus with the requirement of residence or domicile, additional stipulation being set out would not necessarily violate the mandate of Article 14 of

the Constitution of India Whether the conditions as are found in the impugned Rules are in addition to what has been prescribed as a residential or

domicile requirement or could be viewed independent thereof assuming they have a close connection with the requirement of domicile or residenceÂ

We have enough material on record to hold that there is a definite nexus with the object sought to be achieved .

57 In two decisions of the Hon'ble Supreme Court, at least, following Pradeep Jain, this principle is set out We are doing nothing, but abiding by

these binding precedents In the case of Anant Madaan vs State of Haryana (1995) 2 SCC 135, the Hon'ble Supreme Court was considering a case

of admission to medical and dental colleges in the State of Haryana The eligibility criteria prescribed for the year 1994 for the Entrance Test to be

conducted for the State of Haryana for an admission to these courses required the candidate to be a resident / domiciled in the State of Haryana Till

1993, he was required to produce a certificate of Haryana domicile / residence as prescribed in those Rules In 1994, the eligibility conditions were

changed The eligibility conditions, inter alia, for 1994, required the candidate to study 10, 10+1 and 10+2 classes as regular candidate in recognized

Institutions in Haryana and a corrigendum was issued granting eligibility to children / wards of employees belonging to Haryana who had studied 10,

10+1 and 10+2 as regular candidates in recognised Institutions in Chandigarh subject to their fulfillment of other eligibility conditions and further

providing that they should submit a certificate of Haryana domicile alongwith an affidavit by the parent / guardian that the candidate has not appeared

or was not appearing at the Entrance Test of any State or Union Territory other than Haryana An attempt has been made in the cases before us to

distinguish these facts in Anant Madaan by urging that the condition was of study of 10, 10+1 and 10+2 classes as regular candidates in recognised

Institutions in the State of Haryana, whereas before us the conditions are not identically word or are not in such rigorous terms .

58 Be that as it may, challenge was laid to these eligibility conditions and insofar as the requirement of studies for tenth, eleventh and twelfth as

regular candidates in an Institution in the State of Haryana, the corrigendum was also challenged The Division Bench of the High Court differed in

its views and the matter was then referred to a third Judge The third Judge concurred with the view of a Judge upholding this criteria That is how

Anant Madaan and others approached the Hon'ble Supreme Court They argued that this condition is arbitrary and discriminatory because it

excludes children of parents who may be residents of Haryana or who may be domiciled in Haryana, but who may have sent their children to schools

or colleges outside Haryana for a variety of reasons In dealing with such a challenge and thereafter refuting it, this is what the Hon'ble Supreme

Court held :

“8 In view of the above facts, we have to consider whether the condition requiring a candidate to have studied in 10th, 10+1 and 10+2 classes in a

recognised institution in the State of Haryana, can be considered as arbitrary or unreasonable It is by now well settled that preference in admissions on

the basis of residence, as well 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 1955, in the case of DR Joshi v State of Madhya Bharat, this Court making a distinction between the place of birth and

residence, upheld a preference on the basis of residence in educational institutions.

9 In the case of Jagdish Saran vs Union of India this Court reiterated that regional preference or preference on the ground of residence in

granting admission to medical colleges was not arbitrary or unreasonable so long as it was not a wholesale reservation on this basis This Court

referred to various reasons why such preference may be required For example, the residents of a particular region may have very limited opportunities

for technical education while the region may require such technically qualified persons Candidates who were residents of that region were more likely

to remain in the region and serve their region if they were preferred for admission to technical institutions in the State, particularly medical colleges A

State which was short of medical personnel would be justified in giving preference to its own residents in medical colleges as these residents, after

qualifying as doctors, were more likely to remain in the State and give their services to their State The Court also observed that in the case of women

students, regional or residential preference may be justified as their parents may not be willing to send them outside the State for medical education

We, however, need not examine the various reasons which have impelled this Court to uphold residential or institutional preference for admission to

medical colleges The question is settled by the decision of this Court in Pradeep Jain vs Union of India This Court has observed in that judgment:

We are, therefore, of the view that a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to

equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality The

percentage of reservation made on this count may also include institutional reservation for students passing the PUC 1 or pre-medical examination of

the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State.â€​

This Court held in that case that reservation to the extent of 70% on this basis would be permissible This percentage of reservation was subsequently

increased to 85% by this Court in the case of  Dinesh Kumar vs Motilal Nehru Medical College This Court in that case directed an entrance

examination on an all-India basis for the remaining 15% of seats.

10Â In the present case, the reservation which has been made on the basis of candidates having studied for the preceding three years in recognised

schools/colleges in Haryana is in respect of these 85% of seats It excludes 15% seats which have to be filled in on an all-India basis This eligibility

criterion, therefore, is in conformity with the decisions of this Court referred to above It cannot, therefore, be considered as arbitrary or unreasonable

or violative of Article 14 of the Constitution.

11Â The appellants drew our attention to a decision of this Court in Meenakshi Malik vs University of Delhi where the father of the candidate was in

government service He was posted by the Government outside India As the parents were compelled to go outside India, the children were also

required to go with their parents This Court considered this as a hard case It held that the qualifying condition that the candidate should have received

the last two years of education in a school in Delhi, should be relaxed in that case as the candidate was compelled to leave India for a foreign country

by reason of the posting of her parents by the Government.

12 … … …

13Â The appellants have also cited before us some judgments of the High Courts We need not, however, examine them since the matter is concluded

by the above decisions of this Court The eligibility condition, therefore, which requires that the candidate should have studied 10th, 10+1 and 10+2

classes from a recognised institution in the State of Haryana is neither 4 arbitrary nor unreasonable and the Punjab and Haryana High Court has

rightly upheld the same.â€​

59Â As observed above, an attempt is made to distinguish this judgment by assigning two reasons Firstly that when this judgment was delivered, the

mandate of Pradeep Jain was not carried as further or ahead as now Now, the mandate is carried to the extent of holding a National Eligibility-

cum-Entrance Test That is a single test The ranking in order of merit in that test is, therefore, the sole criteria Merely because Dr Pradeep Jain's

case was not departed from to the extent that the States were permitted to carve out a Quota for themselves to subserve their interest, does not

enable prescribing such conditions as would dilute or whittle down the merit The other argument is that the Rules themselves make a distinction

between tenth and twelfth standard examination and term the twelfth standard examination as the qualifying examination The requirement of

passing that examination can be understood and may have been upheld, but there is no consistency insofar as the requirement of passing tenth

standard examination from within the State That definitely has no nexus with the object sought to be achieved.

60 We are unable to accept this contention for more than one reason In the NEET Rules, styled as NEET Brochure and which is placed on

record in all cases, it is evident that the introduction starts with the MCI Regulations It is stated that common counselling is now a requirement

added It says that there shall be a common counselling for admission to MBBS courses in all medical Institutions on the basis of merit list of the

NEETÂ The Designated Authority for counselling for 2015 All India Quota seats of the contributing States shall be the Directorate General of Health

Services (DGHS)Â The counselling for admissions to MBBS course in all Medical Educational Institutions in a State / Union Territory including

Medical, Educational Institutions established by the Central Government, State Government, University, Deemed University etc shall be conducted by

the State / Union Territory Government Such common counselling shall be under the overall superintendence, direction and control of the

State/Union Territory It is in these circumstances that for filling up the seats in the State Quota of eighty five per cent, that the State Government

made the said Rules or the information document.

61 It contains the relevant definitions which we have reproduced above The important one being of the term 'courses' as found in clause 3(e)Â

It is the undergraduate medical courses or undergraduate dental courses, as the case may be, conducted in the State as per the approval of the MCI

and DCI and affiliated to MUHS The admission is, therefore, to these courses The basis for these admissions is the merit and that merit is to be

reckoned with reference to the performance in the NEET and the ranking therein That order in which the candidate is ranked in merit is no way

diluted or altered Based on the NEET results and this merit list, the Quota or percentage of seats is filled in by the respective State Governments, in

the common counselling or admission process and that is always understood to be a distinct exercise and permissible to be carried out by the State

Government / Union Territories With regard to this exercise, Rules and Regulations can be made 62 It has always been held that these Rules and

Regulations, though not strictly referable to any legislation like the Maharashtra Act XXVIII of 2015, are nonetheless referable to the Executive

power of a State which is to be found in Article 162 of the Constitution of India That is on par with the power to make laws and in relation to the

subjects or fields in which the State is empowered to make laws There is a proviso, but we do not see any force in the contentions of Ms Talekar

that with this proviso in place, if any Rules of the nature made with the stipulation as are impugned would run counter to the principle of merit and

which is carved out with reference to such legislations as are squarely referable to Schedule VII List I styled as the Union List We do not see how

when the process is defined, demarcated and clearly segregated in the above manner, can we hold that the State Government is denuded of any

power to make the Regulations or Rules as are found in place We may at once clarify that we are most unhappy with the manner in which the

Maharashtra Government proceeds for though the Department styled as Department of Medical Education and Research through its Directorate is in

place or there is a separate Directorate, a gentleman styled himself as Commissioner CET Cell puts in something like an Information Brochure on the

website and publishes it as if it is an advertisement There is a sanctity attached to everything, including this common counselling and common

admission process This Commissioner is not a law unto himself He may style himself as a competent authority, but we do not see how when the

State Government itself speaks on more occasion than one, through the above Directorate and, in fact, has spoken as late as on 13th April, 2017, can

this gentleman assume that he is everything in relation to this process and it is exclusively his control, monitoring and superintendence which would

govern the conduct of admissions We would highly appreciate that hereafter this gentleman is not put in charge of issuing such Brochures and when

the State Government in exercise of its rule making powers takes recourse to substantive provisions contained in section 23 of the Maharashtra Act

XXVIII of 2015Â It has very clearly spoken and by issuing the Government Resolution traceable to Article 162 of the Constitution of India dated 13th

April, 2017, stating that the rules in place for private institutions in terms of Maharashtra Act XXVIII of 2015 and particularly section 23 thereof would

apply also for filling in the seats in the State run or Municipal Corporation controlled medical colleges We would highly appreciate that the Director

of Medical Education and Research alone publishes the rules or any amendments thereto and takes full responsibility in the event of there being any

dispute raised with regard to their interpretation He has always been put forward to support the State action and it is the affidavit filed on behalf of

the Directorate as also the State Government based on which the arguments of the State are canvassed and its stand is spelled out He cannot,

therefore, be excluded, much less ignored in the whole process There is one more reason why we say so because when parallel authority seeks to

exercise the powers or enforce the rules, inevitably there is confusion and chaos The best illustration or example is the academic session 2018-19.

63Â We do not know how and on what basis the attention of this Court at its Nagpur Bench was invited to only few rules and not the complete setÂ

We have, therefore, before us a version of the Director of Medical Education and Research He has filed an affidavit on behalf of the respondent

Nos1 and 2 and together They are not endorsing the stand of the third respondent and stated to be adopted before the Nagpur Bench of this CourtÂ

In fact, it is stated that the Information Brochure is released by the Commissioner It is he apparently who instructed the learned Assistant

Government Pleader at Nagpur to make a concession, but now everything that he did is disowned by the respondent Nos1 and 2Â The Director has

remained present in this Court after we directed that his presence be secured though he was busy at that time in the Legislative Assembly Session at

Nagpur.

It is the Director who flew to Mumbai, remained present in this Court and instructed the Assistant Government Pleader appearing in these petitions

not to endorse the stand of the third respondent which was adopted before the Nagpur Bench of this Court It is in these circumstances that we are

constrained to observe that there is complete lack of coordination and possibly the respondent Nos1 and 2 feel helpless when the respondent No3 goes

ahead and on his own makes a statement based on which a concession on law is given before this Court In the circumstances, it is entirely the

working and functioning of the Directorate and the third respondent-Commissioner which has resulted in filing of these petitions The detailed and

lengthy arguments necessitating a judgment reiterating the earlier conclusions is but a outcome of this lack of coordination This could have been

avoided We are informed in the presence of the Secretary in the Department of Medical Education and Research that he was unaware of these

developments We hope and trust that now at least there would be a improvement and such incidents do not occur in future Let the Secretary

take the entire responsibility and he must monitor the working of the Directorate and supervise it Equally, if a Cell is created, we do not know what

legal status can be claimed by this Cell It is an unusual sight or scenario in that for this Commissioner of the Common Entrance Test Cell the

Additional and Assistant Government Pleaders on the Original Side and Appellate Side of this Court are not appearing nor are engaged to appear on

his behalf He has a panel of advocates, independent of the State Government and the Directorate of Medical Education and Research Surely, he

cannot take so much liberty and it is now for the Secretary to set right these things and remind all concerned that he has a firm grip on every such

matter which concerns the welfare and interest of the State and equally that of the students The student community should not be left guessing nor

they must suffer because of lack of coordination and cooperation amongst various Departments in the State In such circumstances, we leave the

matter here and say nothing more .

64Â Now we turn to the main question and that is whether these clauses can even now be examined for their legality and validity and can the

challenge be at all considered again and again We feel that the arrangement of the clauses in the Brochure is indicative of how they have been

understood for all these years and decades For the present academic session, the placement of the clauses is after the definitions The title to the

clauses itself clarifies that it is Eligibility for admission to “Health Science Degree Coursesâ€Â Clause 41 says that the candidate must be an

Indian National An exception is carved out for a NonResident Indian and he will be eligible only on All India basis in private unaided college in NRI

Quota Clause 411 deals with Indian Citizens Overseas citizen of India candidate will be also eligible for Government/Corporation/Government

Aided/Private Unaided College for academic year 2018-19 and 2019-20 only In this case also, clause 412 says that such candidate should have

passed their tenth and twelfth standard examination from the State of Maharashtra and should be domicile of Maharashtra or stay in Maharashtra for

a minimum period of ten years Then clause 413 deals with the eligibility of the NRI candidate Clause 42 says that the candidates must be

domicile of Maharashtra (except candidates under clause 413, 47, 48 and Annexure C and E)Â Then, the date of birth is prescribed and birth

certificate would have to be produced together with other proof and they will constitute an evidence of age Then the medical fitness is necessary

and such a certificate ought to be produced at the time of document verification as per proforma The candidate must have passed the SSC or

equivalent examination from an Institution situate in the State of Maharashtra and the attention of the candidate is invited to clauses 47 and 48,

Annexure C and E for exception Then, clause 46 follows which says that the candidate must have passed the qualifying examination ie HSC

twelfth standard or equivalent examination in the State of Maharashtra Then again clause 47, 48, Annexure C and E are referred to as an exception

from the rigour of this clause Even the subjects have been set out and the subjects for which this examination of twelfth standard should have been

attempted and cleared are mentioned Then clause 461 prescribes eligibility criteria for qualifying examination for various courses The clause

continues an exception for SSC and HSC twelfth or equivalent examination That is set out in clause 47 and that encompasses categories of

employees of the Government of Maharashtra or its undertaking and children of whom will be relieved of the condition and the circumstances in

which they can be relieved Thus, this is a conditional relief It is an exception.

65Â We do not see how any eligibility for admission to Health Science degree courses as has been prescribed by this clause cannot be prescribed in

law Can we then ignore all these sub-clauses and the stipulations therein ? Each one of them would have to be read together and harmoniouslyÂ

While they outline the condition of residence and domicile in the State of Maharashtra in clause 412, even an overseas citizen of India candidate will

be eligible provided he has passed the tenth and twelfth standard examination from the State of Maharashtra and is a domicile of Maharashtra or

staying in Maharashtra for a minimum period of ten years Thus, merely because a condition by which the candidate is required to be a domicile of

Maharashtra is set out separately and the other two conditions with regard to passing of SSC or equivalent and HSC / qualifying examination or

equivalent with the subjects set out therein have been distinctly inserted, that we can conclude that they have absolutely no nexus or relation with the

object sought to be achieved Eventually, the object sought to be achieved is that a candidate, domiciled in the State of Maharashtra and fulfilling the

requirement of educational qualifications required for admission to the degree course, obtained within the State of Maharashtra, alone is eligible This

condition can be prescribed either together with the domicile or separately Once it is so prescribed to hold that there is no nexus at all or it has no

relation with the object sought to be achieved would not be proper If there is a departure from the rule of merit permissible in terms of the Hon'ble

Supreme Court verdict itself on two grounds, one of which is the interest of the State, then, to safeguard and protect it, such condition has been

inserted It cannot be termed as superfluous or ignored totally for mere domicile may not justify earmarking of eighty five per cent seats for the

State of Maharashtra If the State of Maharashtra is held to be entitled to fill in these eighty five per cent seats by students residing within its limits

and for protecting its interest and achieving the larger cause of obtaining doctors for public health facilities and caring, then, all the more, the argument

of the counsel appearing for the petitioners on the point of nexus cannot be accepted If there was ever any doubt even that stands cleared by

clauses 417 and 418 of the Brochure, which reads as under :

“417 All those candidates who have passed the SSC (Std X) and/or HSC (Std XII) or equivalent examination/s from an institution/s situated outside

the State of Maharashtra and not Domicile of Maharashtra are not ELIGIBLE for admission to Health Science courses except, those exempted

under Rule 47, 4/8, Defence & MKB and NRI quota (412) in private unaided college.

418 Admission to Health Science Courses is subejct to the grant of eligibility by Maharashtra University of Health Science, Nashik.â€​

66Â It is common ground that Article 14 permits reasonable classification It forbids class legislation, but permits classification within reasonable

limits The classification so made, if questioned, must be established to have a nexus with the object sought to be achieved There ought to be a

rationale and reasonableness behind inserting such provisions as are to be found in the clauses and sub-clauses While defining and outlining eligibility

for admission and bearing in mind the larger objective of the interest of the State, if these conditions pertaining to educational qualifications being

acquired within the State are inserted, then, they are not falling foul of the constitutional mandate We can safely reach this conclusion based on the

judgments of the Hon'ble Supreme Court and the principles enshrined therein .

67Â Even in the case of admissions from common pool or common categories for a student who is a resident of a particular State, such conditions

have been inserted In the case of Mohan Bir Singh Chawla vs Punjab University, Chandigarh & Anr reported in AIR 1997 SC 788, following the

dictum in the Haryana case referred supra, the Hon'ble Supreme Court upheld the action of the State in giving some weightage or granting a

percentage of marks over and above the marks which have been assigned in the qualifying examination to local students In the sense, when the

Punjab University was holding an examination for making admissions to the LLB degree course in the State of Punjab, the Rules did not prohibit

students from other Universities or other States from participating in that admission process However, in the qualifying examination for that course,

which was prescribed, successful candidates from the State of Punjab were given additional marks or weightage over and above the other studentsÂ

That was challenged before the High Court and unsuccessfully before the Hon'ble Supreme Court The judgment, which has been delivered by a

Bench presided over by the same Judge, His Lordship BP Jeevan Reddy who was presiding the Bench delivering the verdict in Anant Madaan, had

this to say while upholding this weightage :

“11 In Anant Madaan v State of Haryana (1995) 2 SCC 135 :(1995 AIR SCW 914), decided by a Bench of two Judges including, one of us (BP

Jeevan Reddy, J), the challenge was to a rule made by the Government of Haryana providing that in matter of admission to MBBS/BDS courses,

eighty five percent of the seats shall be reserved for candidates who have studied 10th, 11th and 12th examinations from schools/colleges outside the

State of Haryana but whose parents were either residing in or domiciled in the State of Haryana The challenge to the rule was repelled following the

decision of the Constitution Bench of this Court in DP Joshi v State of Madhya Bharat (1955) 1 SCR1215 : (AIR 1955 SC 334) and the decisions in

Jagdish Saran (AIR 1980 SC 820), Dr Pradeep Jain (AIR 1984 SC 1420) and Dinesh Kumar (AIR 1986 SC 1877) The impugned rule was, however,

treated as a rule providing preference on the ground of domicile/residence.

 12 Sanjay Ahlawat v Maharishi Dayanand University, Rohtak (1995) 2 SCC 762 : (1995 AIR SCW 228) was again a case from the State of

Haryana The decision was rendered by a Bench of two Judges, including one of us (BP Jeevan Reddy, J) The challenge was to the rule providing that

in the matter of admission to postgraduate medical courses, preference be given to local candidates by adding ten extra marks, ie, to students passing

the MBBS examination from the Rohtak Medical College The rule further provided that students who are residents or domiciled in the State of

Haryana but who have passed their MBBS examination from a medical college outside the State of Haryana shall be added five marks The validity of

the rule was sustained observing that it was not a case of college-wise, or for that matter university-wise, reservation but it is a rule providing for

preference on the basis of domicile It was held on the basis of facts and figures furnished by the State that the said rule did not have the effect of

shutting the doors of admission to students passing their MBBS course from other medical colleges than the Rohtak Medical College, which was said

to be the only medical college in the State of Haryana It was shown to the Court that outside students also got admission in reasonable numbers The

Court accepted the explanation furnished by the State that extra marks were awarded to graduates of the Rohtak College to ensure that medical

facilities in the State are not impaired because of dearth of doctors The Court accepted the explanation that residents of Haryana will, by and large,

remain in Haryana after obtaining medical degrees and that their services will be available to the people of the State In view of these circumstances,

the rule was held to be not violative of Articles 14 and 15 of the Constitution 13 Lastly, we may refer to a three-Judge Bench decision in Gujarat

University v Rajiv Gopinath Bhatt (1996) 4 SCC 60 : (1996 AIR SCW 2483) The Gujarat University invited applications for admission to two

superspeciality courses, DM and MCH, the admission whereto was to be made based upon the marks obtained at the entrance examination conducted

by the university Because of the small number of seats available in the said courses, the rule provided that ""first preference will be given to candidates

from Gujarat University Second preference will be given to candidates from other universities of Gujarat State Any vacancy remaining after this shall

remain unfilled"" By the time, the appeal came up for hearing before this Court, the appeal bad become infructuous as noticed in Para 4 of the

Judgment, inasmuch as the respondent was allowed to join the course and had also completed the course by that date In that view of the matter, the

Court was of the opinion that it is not actually required to examine the grievance made on behalf of the appellant-university against the judgment of the

High Court which had struck down the rule Even so, at the instance of the counsel for the university, the court examined the validity of the rule The

High Court had relied upon the decision of this Court in Jagdish Saran (air 1980 SC 820) and Dr Pradeep Jain (AAIR 1984 SC 1420) for invalidating

the rule This Court, however, sustained the rule, except the last sentence therein, on the following reasoning (at p 2484 Para5 of AIR) :

Without examining that question in detail, it may be pointed out that the aforesaid judgments (Jagdish Saran and Pradeep Jain) were not in connection

with the admission in super-speciality course At the same time, we reiterate that object of any institution while selecting applicants for admission is

select the best amongst the applicants, regional and other considerations which do not satisfy the test of Art 14 of the Constitution should not affect

the merit criteria But from time to time, this court taking into consideration the local and regional compulsion have been making efforts to strike a

balance so that the students who have pursued the studies in a particular State and have been admitted in the medical colleges of that State are not

suddenly thrown on the street when question of their admission in super seats are limited in number.

After referring to certain observations in Dr Pradeep Jain and Anant Madaan, the Court observed, ""(T)herefore if a rule has been framed that out of

the merit list prepared, preference is to be given for admission in the super speciality courses to the students of the University in question, per se it

cannot be held to be arbitrary, unreasonable or violative of Article 14 of the Constitution"" 14 From the decided cases, following principles emerge:

(a)Â College-wise preference is not permissible in any event.

(b)Â University-wise preference is permissible provided it isrelevant and reasonable Seventy to eighty percent reservation has been sustained, even

where students from different universities appear at a common entrance test the trend, however, is towards reducing the reservations and providing

greater weight to merit The practice all over the country today, as a result of the decisions of this Court, is to make fifteen percent of the seats in

MBBS course and twenty five percent of the seats in postgraduate medical courses in all the Government medical colleges in the country [except

Andhra Pradesh and Jammu & Kashmir] available on the basis of merit alone Students from anywhere in the country can compete for these seats

which are allotted on the basis of an All-India test conducted by the designated authority.

(c)Â The rule of preference on the basis ofdomicile/requirement of residence is not bad provided it is within reasonable limits, ie, it does not result in

reserving more than eighty five percent seats in graduate courses and more than seventy five percent seats in post- graduate courses But district-wise

reservations are an anathema.

(d)Â Where the students from different universities appearat a common entrance test/examination [on the basis of which admissions are made] the

rule of university-wise preference too must shed some of its relevance The explanation of difference in evaluation, standard of education and syllabus

lose much of their significance when admission is based upon a common entrance test At the same time, the right of the State governments [which

have established and maintained these institutions] to regulate the process of admission and their desire to provide for their own students should also

be accorded due deference.

(e)Â The fair and proper rule is: the higher you go, in anydiscipline, lesser should be the reservations - of whatever kind It is for this reason that it was

said in DrPradeep Jain that there should be no reservations in the matter of admission to super-specialities, though in the recent decision in Rajiv

Gopinath Bhatt, a different view appears to have been taken while affirming the principle of merit, at the same time In the larger interest of the nation,

it is dangerous to depreciate merit and excellence in any field.â€​

68 We have been noticing that in this Court as well, such a provision was challenged and repeatedly In fact, the learned Advocate General was

right in relying on the order passed by a Division Bench of this Court in Writ Petition No6065 of 2013 decided on 15th July, 2013Â (Smt Surbhi

Suresh Joshi vs State of Maharashtra & Anr)Â The grievance of the petitioner in that case was that she was called for counselling by the second

respondent, but denied admission in the State Quota The denial was on virtually the same grounds The counsel for the petitioners in that case

argued that though the petitioner is domiciled in the State of Maharashtra, the qualifying examination was passed by her from the State of RajasthanÂ

Rule 93 at that time dealt with eligibility for the State Quota seats The argument was that Rule 93 does not impose any condition for claiming a seat

in the State Quota, the candidate must have passed the qualifying examination from that State It was argued on the basis of the Notification and

Rules published by the State of Maharashtra after the declaration of the result of the Entrance Examination, a condition was imposed by the State that

the candidate should have passed his or her tenth and twelfth examination from an Institution which is situate in the State of Maharashtra No such

condition was found in the Rules of the NEETÂ Reliance was placed on a judgment of the Hon'ble Supreme Court in the case of Parmender Kumar

vs State of Haryana reported in (2012) 1 SCC 177Â Thus, the argument was that Rules have been framed to the prejudice of the petitioner and

subsequent to the commencement of the process While dealing with that argument, the Division Bench held that the Rules of NEET do not

prescribe eligibility for eighty five per cent State Quota seats and as far as eligibility is concerned, the same will be governed by the State Rules So

much for the competency of the State Then, it was argued that Rule 12 of the Rules which help the candidate to choose State Code to claim seats

under State Quota does not, in any manner, make any reference to any residential criteria of eligibility being fulfilled Even that argument of the

petitioner was turned down and it was conceded before the Division Bench that as far as the State of Maharashtra is concerned, there was always a

Rule in force which prohibited candidates, who have not passed the qualifying examination from within the State of Maharashtra, to secure admission

in the eighty five per cent State Quota The Rules, modified by the State in July 2013 insofar as the eligibility criteria is concerned, are the same as

earlier years and it was not disputed that as far as the requirement of candidates passing the qualifying examination from within the State is concerned

that Rule prevailed and was in force for the last several years It is in these circumstances that the Division Bench turned down the challenge.

69 In Writ Petition No 5606 of 2013 decided on 17th July, 2013, a Division Bench of this Court at Aurangabad heard a challenge to an identical

clause There, clause 41 for the NEET UG-2013 Rules required the candidate to pass the qualifying examination or equivalent from an Institution in

the State of Maharashtra with the subjects as above The argument was that the petitioner before the Court passed tenth standard examination from

Cambridge School, Aurangabad and thereafter shifted to Delhi for pursing studies of eleventh and twelfth from Science stream The petitioner

completed eleventh and twelfth from Delhi and after having successfully passed those examinations, appeared for the NEET on 5th May, 2013Â An

All India rank was secured and based on the ranking in the merit list, the petitioner alleged that she is qualified to seek admission even in the State

Quota for she has been a domicile of Maharashtra and completed her tenth standard from the State of Maharashtra The very same judgments, which

have been relied upon before us , were relied upon in support of the arguments of the petitioner and after referring to each one of them and the more

recent ones in the case of Dr Saurabh Chaudri & Ors vs Union of India & Ors (2003) 11 SCC 146 the Division Bench expressed its opinion in

paragraph 20 by holding that it is crystal clear that eighty five per cent Quota seats shall be subject to eligibility criteria prevailing in a particular State

or Union Territory as notified by the respective States or Union Territories Then, the Rules of NEET and particularly, Rules 93, 113 and 162 were

referred and it was held that there is nothing in these Rules which will prevent or preclude the State Government from proceeding in the manner

placed before the Division Bench The Rule prescribing institutional preference was held to be valid and not offending the guarantee of equality In

the circumstances, that petition stood dismissed.

70Â Another Division Bench of this Court in Writ Petition No 5954 of 2015 decided on 25th July, 2014, considered a challenge to the same RuleÂ

The grounds of challenge were identical as also the defence of the State The Division Bench rejected the argument by concluding in paragraph 12

that the condition of qualifying examination cannot be relaxed The requirement that the candidate must have passed qualifying examination from the

State of Maharashtra in the subjects referred can, in no way, be said to be arbitrary or reasonable The percentage of marks of those subject is

necessary to decide the merit while selecting or considering the merits of candidates That could not be said to be not germane or irrelevant, as was

sought to be contended, and incapable of being relaxed There was no material placed to hold that the Rule is violative of the mandate of Article 14

of the Constitution of India.

71Â The learned Advocate General then urged that in Writ Petition No5717 of 2013, a Division Bench presided over by Hon'ble BP Dharmadhikari, J

had negatived the challenge to these Rules That judgment also makes a reference to the decisions of the Hon'ble Supreme Court in the fieldÂ

Pertinently, it made reference to the judgment in the case of Mohan Bir Singh Chawla vs Punjab University, Chandigarh, the passages of which we

have reproduced above and holds that it practically looks into all earlier judgments The Hon'ble Supreme Court makes reference to all the decided

cases and holds that the impugned Rule was, however, treated as a rule providing preference on the ground of domicile / residence The educational

requirement of passing qualifying examination and a prior tenth standard examination is but an extension or facet of the same In the circumstances,

the challenge was negatived and with the same reasoning.

72 Thus, what we have before us are several orders of this Court consistently passed and holding the field Our attention was also invited by the

learned Advocate General to two judgments of this Court which either in the absence of Rule of domicile or together with it prescribed a criteria of

having passed tenth or twelfth standard examination from the State of Maharashtra Such a Rule was held not to be arbitrary though it was not

coupled with or not appearing in the eligibility or qualifying rules together with the domicile Thus, such conditions imposed in isolation as well have

been upheld That is the basis on which the State ascertains for itself that it is giving admission to a meritorious student, but who has roots in the

State or has a connection with the State True it is that it would have been ideal if the examination and the admission both assume a National

character It would have been integration in the true sense of the term if all students compete with each other wherever they are residing and

whichever part of this country they come from That would have been ideal situation and that would have really brought about the integration

conceptualized by the Hon'ble Supreme Court in the case of Dr Pradeep Jain However, the Hon'ble Supreme Court desired to achieve true and real

equality It was aware of the ground situation It was aware of the diversities in the State It could not have, therefore, ignored them If States

have their own peculiar situations, not just on account of geographical locations, but several other relevant and connected factors and they have to be

borne in mind, then, a level playing field must be made available so that the local talent is utilised for protecting and safeguarding the interest of the

State If a particular State is desirous of utilising its talent so as to promote and protect its public health care, then, we do not see how, the Hon'ble

Supreme Court allowing such a departure and holding that it is on justifiable ground, can we take a different view.

73Â Each of the arguments and noted by us hereinabove may not have been canvassed with the use and aid of same words and expressions and in

the same manner However, the binding effect of a judgment of the Hon'ble Supreme Court cannot be diluted by holding that some facet of the

controversy or some argument in relation to the same has missed the attention of the Judges or was not canvassed before the Judges deciding the

matter By such a specious exercise, we cannot brush aside binding precedents This is not a path which we can follow for that would mean there

will be only inconsistency and confusion without any predictability to judicial decisions The hallmark of the system is that it should be consistent in its

approach We cannot say that the judgments of this Court are not binding upon us More so, when it is nobody's argument that they are per

incuriam In such circumstances we hold that we are bound by all the earlier judgments of this Court which but follow the judgments of the Hon'ble

Supreme Court We cannot take a different view. [See Director of Settlements, AP & Ors vs MR Apparao & Anr, AIR 2002 SC 1598]

74 All that now remains is the Division Bench judgment of this Court on which heavy reliance has been placed by the petitioners That was

rendered in the case of Rajiv Pushottam Wadhwa vs State of Maharashtra & Ors In Rajiv Purshottam, a Division Bench of this Court considered

somewhat similar challenge, but the background facts would have to be noted Rule 44 was the subject matter of the decision and it provided that

the candidate seeking admission to course in Health Sciences for academic year 2000-2001 would be eligible for admission only if he or she has

passed SSC examination from an Institution situate in the State of Maharashtra Rule 45 requires, as condition of eligibility, that every candidate

must have passed the HSC Certificate or equivalent examination from an Institution situate in the State of Maharashtra Rule 44 was challenged on

the ground that the same violates the mandate of Article 14 of the Constitution of India The Court clarified that passing of qualifying examination

from within the State of Maharashtra prescribed in Rule 45 was not under consideration It also held that HSC examination is the qualifying

examination for admission to medical courses and the passing of that examination from the State of Maharashtra is thus a valid requirement of

eligibility Wadhwa's case was that his father as well as his mother were born in Maharashtra After completing SSC in 1983 from Pune Board

Wadhwa's father joined the Defence services as a Radar Operator in the Indian Air Force He served the Indian Air Force until 26th June, 1979

when he retired Upon retirement from the Air Force, the petitioner's father took up employment at the Airport at Dubai Rajiv Wadhwa was born

on 26th September, 1982 and completed his education until tenth standard in Dubai In March 1998 the petitioner passed the tenth standard examination

held in Dubai and conducted by the CBSE, New Delhi He obtained admission to the eleventh standard at Kirti College, Dadar, Mumbai He

passed eleventh standard in May 1999 and after which he was admitted to HSC course in the twelfth standard  The Rules for admission to

undergraduate medical course were traced in the subsequent paragraphs and thereafter, the argument was that exemptions granted to children of

employees serving in the State and Central Government would throw some light on the intent of the Rule makers Thus, the Division Bench held that

but for the academic years 1995-96 and 1996-97, a candidate desirous of seeking admission to medical or dental courses had to pass the SSC as well

as HSC examination from an Institution or School situate in the State of Maharashtra An exception was, however, made in the case of students

whose parents were domiciled in the State of Maharashtra In their case, the Rules for 1995-96 provided that such students would be eligible for

admission by relaxation of the conditions requiring the passing of SSC examination and HSC examination from Institutions situate in the State of

Maharashtra The exemption contemplated by the Rules of 1995-96 in respect of students whose parents were domiciled in the State was continued

for the years 1996-97, subject to further condition that the Institution from which the student had passed the SSC and/or HSC examination should be

situate within the territory of India The essential point was during the period 1995-97, the servants of Maharashtra State or its undertaking on

deputation to Central Government / Government of India undertaking and sons and daughters of Maharashtra Government servants posted outside the

State on a post of Government of Maharashtra or its undertaking shall be eligible for appearing in MH-CET-2000, even if they have passed their SSC

and/or HSC from an Institution outside Maharashtra State, provided such candidate must have completed at least five years of their education

between standard first to the standard of the qualifying examination ie HSC or equivalent from an Institution situated in the State of Maharashtra

Sometime in February, 2000, when Wadhwa sought to submit his application that was not accepted in view of the provisions contained in Rule 44 and

that is how he was permitted by an ad-interim order passed by this Court to appear for the CET to be conducted on 4th April, 2000 Thereafter, at his

instance, the challenge was considered Various orders of Division Benches of this Court, including some of those relied upon by the learned

Advocate General were brought to the notice of the Bench and after all of them were referred, including the guiding principle in Dr Pradeep Jain, the

Division Bench would hold that departure from the principle of merit in making admissions by the Supreme Court means that it would still not be open

to the State to make wholesale reservation on the basis of the domicile, residential and institutional preferences It then proceeded to hold that Rule

44 would pose a problem and it can debar a student who even otherwise is domiciled in the State from seeking admission in the State Quota The

issue before the Court was whether a candidate who otherwise fulfills the requirement of residential or domicile within the State can be excluded from

admission solely on the ground that he or she has not passed standard tenth from within the State It is in these circumstances and because of the

absence of the other Rule that the Division Bench read down Rule 44 and held that unless so read, it would not be possible to save it from the vice

of arbitrariness and unconstitutionality We do not see how we can read these observations relied upon and particularly paragraph 21 in isolation and

de hors the background facts However, after Rajiv Wadhwa (supra), there has been a complete change in the Rules and each of the Rules after

Wadhwa's case have been prescribing the eligibility criteria on both counts, namely, residential / domicile and obtaining educational qualifications, in

both tenth and twelfth standard examinations, cleared from within the State of Maharashtra is the prescription It is thus not possible to agree with

the petitioners' advocates that we must ignore the stipulation of passing the tenth examination from within the State and go on and relying upon other

clauses to hold them eligible Once we find this is but a common thread and flowing from these three rules and coupled with these three rules that

this Court and the Hon'ble Supreme Court consistently laying down the principle that they do not fall foul of the constitutional mandate, can we

construe them otherwise Pertinently, in Wadhwa's case, we have not found the Division Bench making a reference to the judgments of the Hon'ble

Supreme Court in the case of Anant Madaan and Mohan Bir Singh Chawla (supra) That is an additional reason why we cannot, relying upon the

judgment in Wadhwa's case, take a different view.

75Â Finally what remains is the reliance by the counsel appearing for the petitioners on the contents of the notice and the interim and final order of

the Division Bench at Nagpur for this academic year We think that this is an argument in desperation The interim order of the Division Bench was

passed with reference to a Rule and that Rule has been quoted in the order itself The Division Bench found that a screen shot of the Information

Brochure contains clause 47 or 48 to which a reference is made This clause appeared to the Division Bench to be inconsistent with the amendment

effected on 2nd September, 2016 to the Maharashtra Un-Aided Private Professional Educational Institution (Regulation of Admission to the Full Time

Professional Undergraduate Medical and Dental Courses) Rules, 2016Â Rule 5 thereof had been amended and the provision in the form of clause (b)

enables SSC or equivalent examination from outside the State of Maharashtra being taken, still, the candidate is eligible for admission to undergraduate

Health Science courses subject to the conditions stipulated therein The petitioners claim that they have satisfied these conditions.

76 With greatest respect to the Division Bench, we find that its attention was not invited to the complete Rules and the amendments in toto What

we find from the Notification and which has been published in the Maharashtra Government Gazette on 2nd September, 2016, notifying the

amendment Rules of 2016, is that in paragraph 2 of this Notification, Rule 5 of the Rules has been referred in sub-rule 1, for Entry A, the entry as set

out in this Notification is substituted As far as clause B is concerned, that has been inserted with a rider.Â

77Â Thus, there is Entry A in the earlier Rule which is substituted by Entry A with its sub-clauses and when it makes a substitution in sub-clause (vii)

what it says is notwithstanding anything contained in clause 1 to 5 and 6 for academic year 201617, the candidates complying with the following

eligibility conditions shall also be eligible to seek admission for this category Clause B which has been referred by the Division Bench is without

noticing its non obstante clause at all With its sweep had the clause been noticed or the attention of the Division Bench been invited to it, possibly it

would not have rendered a conclusion even at the interlocutory stage as has been rendered and relied upon Thus, the order of the Division Bench,

without noticing a statutory prescription in its entirety, can safely be termed as per curiam and not binding on us It could not have also been held to

be binding on the State and the respondents before us even though acting in furtherance thereof, they may have granted admissions to some

students It is only for the academic year 2016-17 that the non obstante clause enables the candidates to comply with the eligibility condition in sub-

clauses (a) and (b) of clause 7 of Entry A that the relaxation or exemption would apply It can have no application to the admissions for the academic

year 2018-19 when there is a set of Rules as noticed by us hereinabove and firmly in place It is in these circumstances that the concession of the

learned Assistant Government Pleader given or made before the Nagpur Bench of this Court would not bind the State at all That is a concession on

law No amount of concession and on a question of law can bind the State Government It is well settled that in matters of constitutional provisions

or interpreting of a law or legal provision, it is only the stand of the Advocate General which would ordinarily bind the State No other counsel, much

less, an Assistant Government Pleader can make any statement of this nature which would bind the State [Periyar and Pareekanni Rubbers Ltd vsÂ

State of Kerala, AIR 1990 SC 2192].

78Â In such circumstances, we do not think that either the order of the Division Bench at Nagpur or the notice published in furtherance thereof can

protect the students before us Their reliance on the same is entirely misplaced All that we see and as a result of this order and the notice is that

other students get an opportunity to once again raise the same issues and take our precious judicial time All this could have been avoided had the

State conducted itself properly and in an organized manner We say nothing more.

79 Mr Naidu's arguments based on the Rules do not impress us He would only say that even the qualifying examination need not be passed from

within the State for the candidate represented by him has taken the qualifying examination from the State of Kerala No amount of reliance placed

by him on the Rules or its wording would assist him when the legal position and binding upon us is as clear as mentioned herein above In the

circumstances,we do not see how this candidate can obtain admission or can be held to be eligible for admission under the State Quota.

80Â Finally, the alternate argument of those students who say that they have now been admitted and the first round being over, their admission need

not be disturbed, is left for being considered In the affidavit filed in the Writ Petition which was argued by Mr Naidu and which affidavit reflects the

common stand of the Government, it is stated that the reproduced paragraph therefrom would indicate the number of students That 101 students

submitted their application on-line after the notice dated 13th June, 2018, was published by the third respondent Out of these 101 students, 67

candidates attended document verification process in the first round and out of 67 candidates, 31 were selected for MBBS/BDS course Out of 31

selected candidates, 14 are selected for Government MBBS and 4 for Private MBBSÂ One candidate is selected for Government BDS and 5 for

private BDS course None of those who had moved the Nagpur Bench of this Court could secure admission in Health Science courses We had

brought the argument in alternate to the notice of the learned Advocate General and at the conclusion of his submissions, he sought time to take

further instructions On further instructions Mr Kumbhakoni, learned Advocate General duly tendered an affidavit of the Director of Medical

Education & Research which says that the chart annexed to this affidavit of 26th July, 2018, would demonstrate that 30 candidates out of 31

candidates joined the course One candidate did not join Out of 31 candidates who have joined, 10 candidates have submitted Status Retention

Form expressing their intention to continue with the allotment and not to participate in the further rounds of admission in the State Quota 6

candidates were allotted seats in the first round of medical counselling through All India Quota 25 candidates were not allotted seats in the first

round of medical counselling Thus, it is not correct to say that all the 31 petitioners were allotted seats in the first round of All India allotment by

Medical Counselling Committee and that all of them have cancelled their allotments only to take seats in the State Quota Only 6 out of 31 were

allotted seats in the first round of All India Quota out of which 5 have joined the seats allotted to them from the State Quota The Director is not

aware as to whether these 5 candidates have cancelled their allotments during the course of first All India allotment by the Medical Counselling

Committee on the basis of which a claim of hardship is made.Â

81Â We have heard both sides on this limited point, but as we have upheld the validity of the Rules, then, this alternate argument need not detain usÂ

First of all, the Rules with the same phraseology were throughout in place The Rules for admission under the State Quota would have been validly

notified and relied upon by the State Government and the Directorate in granting admissions under the State Quota Once the freedom and liberty to

make rules and to complete the process in accordance therewith is afforded by law, then, we are nobody to allow such alternate requests of the

petitioners and on the specious pleas of hardship to them The Rules were in place for decades together Their wording and placement may have

changed for some academic year or the other However, the stipulation of residence coupled with the passing of examination were made known to

all and throughout they were in place They were in place even for this academic session and known to the petitioners and such candidates from 6th

June, 2018, itself Despite all this, after relying upon a notice published by the State Government, but contrary to the Rules, they take their chances in

the State Quota, then, they are themselves to blame They should have taken due care and ought to have been diligent enough before giving up any

opportunity at the All India level or taking admissions in the State Quota on some tentative and temporary understanding given to them about the

interpretation of the Rules Once the law does not permit them to enter the State Quota, then, we are nobody to assist them The alternate

argument on the ground of hardship is also, therefore, rejected.

82Â In the passing we may invite the attention of all concerned to a judgment of the Hon'ble Supreme court delivered as far back as on 25th April,

1969, in the case of Kumari Chitra Ghosh & Anr Vs Union of India & Ors vs Union of India reported in (1969) 2 SCC 228 on the ambit and scope of

Article 14Â While discussing that aspect, the Hon'ble Supreme Court held that in matters of this nature, the classification in the cases based on

intelligible differentia, which distinguishes them from the group to which the appellants before the Supreme Court belonged, would be enough to

negative their challenge The Supreme Court held that it is the Central Government which bears the financial burden of running the medical

college It is for it to lay down criteria of eligibility The Government cannot be denied the right to decide from what sources the admissions will be

made If the sources are properly classified, whether  on territorial, geographical or other reasonable basis, it is not for the courts to interfere

with the manner and method of making the classification If the sources have been classified in the manner done in that case, then, it is difficult to

say how its classification has no rational nexus with the object of imparting medical education as also of selection for the purpose This is not,

therefore, a case of any preferential treatment either. Â

83Â We have but followed this principle and we have found that the challenge to the impugned Rules on the ground that they violate the mandate of

Article 14 can safely be negatived by holding that the classification is made on a reasonable basis and has a definite nexus with the object sought to be

achieved .

84 As a result of the above discussion, Rule in each of these petitions is discharged The interim order, if any, to stand vacated The petitions

are dismissed but without any order as to costs.

85Â After the judgment was dictated and pronounced in open Court, Ms Pooja Thorat appearing for the petitioners in some of the petitions, on

instructions, seeks a stay of this order and prays that the interim arrangement be continued at least for a few weeks to enable the candidates who are

now displaced by this judgment and order to consider their position and possibly challenge this judgment in a higher Court The request is opposed on

behalf of the State Government and the Directorate of Medical Education & Research by the learned Advocate General so also by the counsel for the

intervenors .

86Â We have heard counsel on this point as well and we find that there is a complete schedule which has been put in place regulating the process of

granting admissions There are stages and which are well and properly defined with details and the dates on which they would take place Today,

namely, 26th July, 2018, is a stage of declaration of the list of selected candidates of two rounds If we allow by way of an interim arrangement, the

petitioners, who are not eligible, to hold on to their seats, then, those waiting for these very seats and fully eligible for being considered under the State

Quota would suffer immensely It is a question of their career and their prospects as well Eventually rights and equities have to be balanced We

cannot, in the garb of allowing the petitioners to hold on to their seats, frustrate and defeat the rights of eligible candidates Though there is a

hardship, we cannot grant any relief only and purely on the ground of hardship and sympathy We decline the request of Ms Thorat The prayer to

continue the interim arrangement is thus refused . Â