IN THE HIGH COURT OF MADHYA PRADESHBENCH AT GWALIOR

/202°W.P. NDr. Saurabh Dhakad, Aged

about 29 years, S/o Shri

Narayan Sjngh Dhakad, R/o

Village Salon B, Tehsil Bhandeo

District Datia (MR.)

Dr. Vijay Raghuwanshi, Aged

about 29 years, S/o Shri

Ranveer Raghuwanshi, R/o

Dungashra, Tehsil Naisarai, District Ashoknagar (M.P.)

1.PETITIONER :

2(00

hresMut1

2.

Versus

The State of M.P. through

Principal Secretary, Ministry of

Technical Education, Skill and

Training, Mantralaya, Vallabh

Bhawan Bhopal (M.P.)

RESPONDENT: 1.

The Principal Secretary, Govt, of

M.P., Department of . Medical

Education, Vallabh Bhawan

Bhopal (M.P.)

2.

3. The Director of Medical Education, Madhya Pradesh, 6th

Floor, Satpuda Bhawan Bhopal

(M.P.)

WRIT PETITION UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA

Declaration :

Copies as required by Rule 25 of the Chapter X of the

High Court of M.P. Rule 2008 have been served upon

on date .03.2020.A.G. Office at time

MAY IT PLEASE THIS HON'BLE COURT.

The Humble petitioner submits this petition as under:

(1) PARTICULARS OF THE CAUSE/ORDER AGAINST

WHICH THE PETITION IS MADE:

. (1) : Date of Order:

Decision etc:

(2) Passed in (Case or File Number)

y

(3) Passed by (Name and designation of the Court,

Authority, Tribunal etc.):

(4) Subject-matter in brief:

The present petition is filed challenging the

vires of (Sub Clause 5) of Clause 3 of Schedule 1

under Rule 2 (m) of M.P. Chikitsa Shiksha

Pravesh Niyam 2018. The said (Sub Clause 5) of

Clause 3 of Schedule 1 of the aforesaid rules of

2018 is un-constitutional being in violation of Article

14 of the Constitution of India hence deserves to be

struck down.

The aforesaid rule has been published in the

notification dated 09.03.2018 according to which

domicile based reservation is prescribed and at theA r

'/Vi same time the domicile condition has been relaxed/A,

in respect of institutional candidates. Thus, thev;impugned eligibility clause grants two way

reservation i.e. first to the domicile of the State of .

M.P. and another institutional basis. The same is

prejudicial to the interest of petitioners and being in

contravention to Article 14 of the Constitution of

India and is liable to be struck down. It is settled

law that there cannot be any domicile based

reservation, contrary to the merit criteria and,

therefore, the said eligibility clause is

unconstitutional.

The High Court of Chhattisgarh in W.P. (c)

No.1338/2019 has declared the similar rule to be

unconstitutional. The High Court of Allahabad has

also taken the same view. Copy of the Rules of

2018 is enclosed and marked as Annexure P/1.

(2) A DECLARATION THAT NO PROCEEDING ON

THE SAME SUBJECT MATTER HAS BEEN

PREVIOUSLY INSTITUTED IN ANY COURT,"v . A

AUTHORITY OR TRIBUNAL. IF INSTITUTED,••/. THE STATUS OR RESULT THEREOF, ALONGA/

WITH COPY OF THE ORDER:

The petitioner declares that no proceeding on the

same subject matter has been previously instituted

*

(3) DETAILS OF REMEDIES EXHAUSTED :

The petitioner declares that he has availed all

statutory and other remedies.

(4) DELAY, IF ANY, IN FILING THE PETITION AND

EXPLANATION THEREFOR:

There is no delay in filing the present petition.

(5) FACTS OF THE CASE :

The facts giving rise to the present petition are as

under:

5.1 That, all the petitioners are eligible for admission in

post graduate courses of Medical Science (MS/MD)..»

% ■ They have obtained their MBBS degree from the/

institute located in the State of M.P. Copy of their

certificates are enclosed and marked as Annexure

P/2.

5.2 That, for. the purpose of granting admission, in the

PG Medical courses, according to the MCI

regulations, the student has to pass Ail India

0 •

Common NEET Examination. It is stated that all the

petitioners have passed the aforesaid All India

Common NEET Examination with 50% qualifying

marks and accordingly they are eligible to take

admission in the academic session 2020-21. Copy of

the NEET score card is enclosed and marked as

Annexure P/3.

5.3 That, the State of M.P. has formulated the rules for

the purpose of granting admission in the PG Medical

courses and such rules have been notified in the

gazette dated 09.03.2018.

That, according to the aforesaid rules of 2018, 50%KT9 )•

.QkJix v*sih

seats are reserved for M.P. domicile candidates

1 which have been defined under (Sub Clause 5) of

Clause 3 of Schedule 1 under rule 2 (m). But

however, under the aforesaid rules, the respondent

State has prescribed the domicile reservation which

is in violation of Article 14 of the Constitution of

India. Once the respondents have decided to grant

admission based upon All India Common NEET

KP)^Y

I

Examination, wherein any eligible qualified student

can appear from through the country, the

respondents cannot provide for 50% domicile

reservation to the candidates for the State of M.P.

though the petitioners are domicile of the State of

M.P but however, on the one hand the respondents

are providing domicile based reservation and at the

same time they are relaxing the condition to the

institutional candidates. Thus, due to double

application of reservation rules, the petitioners'

rights are in jeopardy and have been affected

adversely.

5.5 That, the said rules framed vide impugned

notification, elaborates the various situations when

one can be said to be a bonafide resident of M.P.,rP'.\u \ the petitioners are being aggrieved by the decision+■nj?j lof the responded No.l, State of M.P. by makingt

those students who have pursued MBBS from

colleges outside the State of M.P. as eligible for the

State quota seats of M.P., provided that they are

bonafide residents of the State of M.P., that is only

4

Medical/DentalGovernment and Private

Colleges/Institutions/State University and PG

Diploma Courses etc. on the basis of merit fist

prepared as per Clauses (1), (3), (4), (5) and (6) of

the Eligibility for Admission as per the schedule

detailed in the Uttar Pradesh Counseling Brochure.

49. Before parting with the case, I wish to

appreciate the assistance given by the learned

counsel for the parties appearing in this case, who

have been able to complete the pleadings and put

forth their contentions in the shortest span of time,

looking to the urgency in the matter and also the

concern of the Court with regard to the fact that the

ongoing counseling should not be disturbed.

The writ petition is accordingly allowed."

Copy of the said judgment is enclosed and

marked as Annexure P/4,

5.7 That, similar question arose, in the State of

Chhattisgarh and the Hon'bie High Court,of Bilaspur

4

on the basis of their being a resident or domicile of

M.P.

5.6 That, in the State of U.P., the identical eligibility

condition was placed in the rules to which vires was

challenged before the Hon'ble High Court of

Allahabad and while High Court of Aliahabad relying

upon the judgment of Hon'ble Apex Court, in the

case of Dr. Pradeep Jain Vs. Union of India reported

in 1984 (3) SCC 654, in para 48 to 50 has held as

under:

"48. The result after following the above judgment

of the Hon'ble Supreme Court, is that the Clause 3

(Kha) of the Government Order dated 09/03/2019

■ and Clause 2 of the eligibility criteria as published in

the Uttar Pradesh counseling brochure issued by

U

i +

respondent number 2 is quashed; and the parties

are at liberty to proceed with the counseling of the

candidates selected through NEET PG 2019 for

admission to the State quota of seat of

Postgraduate MD/MS/MDS courses in various

! IA_^> L ItA-fi'ST/t fj'

!c

4

violative of the Constitutional rights of the

petitioners. The same is discriminatory.

5.10 That, for the reasons aforesaid, the present petition

is filed inter alia on the following grounds:

(6) GROUNDSURGED:

That, Because the Respondents by lay down the6.1

Eligibility Criteria providing for reservation for the

bona fide residents and domicile of Madhya Pradesh

in Rule 15, of the Rules framed vide the impugned

notification have violated the law as laid down and

directions given by the Hon'ble Supreme Court of

India in Dr Pradeep Jain v. Union of India (1984

3 SCC 654) where in it has been held that,jf^so far

as admissions to post graduate courses, such as

• >.

M.S/M.D. and the like are concerned, it would be

eminently desirable not to provide for any

reservation based on residence requirement within

the State or on institutional preference. But having

regard to broad considerations of equality of

opportunity and institutional continuity in education

■£/

which has its own importance and value, it is

directed that though residence requirement within

the State shall not be ground for reservation in

admissions to post- graduate courses, a certain

percentage of seats may in the present

circumstances, be reserved on the basis of

institutional preference in the sense that a student

who has passed M.B.B.S, courses from a medical

college or university may be given preference for

admission to the post-graduate course in the same

medical college or university/'t-VS IV- VO

A 6.2 That, because the very intention of the Rules

♦ framed vide the impugned notification is to

determine the procedure for catering for the

' admission to the 50% seats reserved under the

state quota, which was provided to cater to the

requirement of providing institutional preference,i

however in the garb of providing for the institutional

preference the Respondent State of Madhya

Pradesh have instead provided for reservation of

seats for those who are domicile or bona fide

\J

residents of the State of Madhya Pradesh, in a clear

act of colorable legislation.

6.3 That, the (Sub Clause 5) of Clause 3 of Schedule 1

of the rules of 2018 is constitutional because the

domicile based reservation, is impressible in

view of provisions contained under article 14 of the

Constitution of India because our constitution do

not recognize the domicile based reservation as the

same affects the opportunity to get admission and

employment vested under Article 14 of the Citizens

of India,. Due to this reason also the impugned

(Sub Clause 5) of Clause 3 of Schedule 1 of the

rules of 2018 is ultra-vires to the constitution and,, /. ;u.

therefore, same deserves to be struck down./

•> >/ ■

"*■" 6.4 That, the Hon'ble High Court of Chhattisgarh,

though has held the said condition to be ultra-vires

but however due to commencement of the

v/-

academic session, refrain from granting the relief as

prayed in the petition. To avoid such a situation, the

petitioners prayed that the petitions may be taken

V

up for hearing at an earliest in order to provide

justice to the petitioners, to secure their

constitutional rights.

6.5 That, the other grounds shall be urged during the

course of arguments.

(7) RELIEF PRAYED FOR:

It is therefore prayed that this petition may kindly

be allowed by issuing appropriate writ or direction

by exercising powers under Article 226 of the

Constitution of India. Following relief be directed to

be ordered in favour of the petitioner.

(i) That, the (Sub Clause 5) of Clause 3 of Schedule

1 under Rule 2 (m) of the M.P. Chikitsa Shiksha

Pravesh Niyam 2018 conatined in Annexure P/1,

may be stuck down and accordingly the

respondents may be directed to allot the 50%

State quota seats in PG Medical courses to such

students who have secured their MBBS degree

from the State of M.P. irrespective from of their

f

domicile. The domicile based reservation

provided under the aforesaid rule be held to be3

unconstitional and be struck down.

(ii)That/ other relief which is just and proper in the

facts and circumstances of the case may also be

granted.

(8) INTERIM ORDER/WRIT, IF PRAYED FOR:

In the meantime, looking towards the facts and

circumstances of the case as have been brought on

record and mainly considering the judgment given

by Hon'ble High Curt of Allahabad as well as by

Hon'ble High Court of Chhattisgarh, the petitioners

most humbly pray that the effect and operation of

r (Sub Clause 5) of Clause 3 of Schedule 1 under Rule

' 2 (m) of the M.P. Chikitsa Shiksha Pravesh Niyam

ri■ >'ft■V /

2018, which provides for domicile based

reservation, be directed to remain^suspended and

the effect and operation of said eligibility condition

be stayed during pendency of this petition and a

further direction may also be issued to the

V

respondents to conduct the counseling for PG

Medical courses, based upon M.P. institutional

reservation or in alternative to stay the counseling

and allotment of the seats. Copy of the tentative

schedule is also enclosed and marked as Annexure

P/7.

(9) DOCUMENTS RELIED ON BUT NOT IN POSSESSION OF THE PETITIONER:

(10) CAVEAT :

No notice of lodging a caveat by the opposite party is received.

Humble petitionersDate:-11.03.2020

Through CounselGwalior:"t

(M.P.S. Raghuvanshi)*

N-'V- '(D.S. KBgnuvans

Advocates

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WP.6429.2020

THE HIGH COURT OF MADHYA PRADESH WP.6429.2020

(Dr. Saurabh Dhakad & Anr. Vs. State of 1VT.P. & Ors )

Gwalior Dt. 28.04.2020

Petitioner No. 1 Dr. Saurabh Dhakad in person.

Shri Purushaindra ICaurav, learned Advocate General, for the

respondent/State of Madhya Pradesh.

All the parties have been heard through medium of Video

Conferencing.

This Court on the last occasion i.e. 16.03.2020 had enquired

from the State as to whether the decisions rendered by the;■

Allahabad High Court and Chhasttisgarh High Court (Annexures

P-4 and P-5) attained finality or are under challenge before the ■

higher forum.

Shri Kaurav, learned Advocate General, on being asked about

the aforesaid, submits that since he has received the file and

instructions only a short while ago, he wants further time to answer

the query raised by this Court on 16.03.2020.

The petitioner who appears in person submits that next round

of counselling is scheduled to start from 04lh of May, 2020 and thus

expresses urgency.

Accordingly, State is granted further time to seek instructions

as regards order dated 16.03.2020.

2 WP.6429.2020

The matter stands adjourned with liberty'to the petitioners to

pray before Hon'ble the Chief Justice for early hearing of the matter.

(Sheel Nagu) Judge

(Rajeev Kumar Shrivastava) Judge

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WP.6429.2020

THE HIGH COURT OF MADHYA PRADESH WP.6429.2020

(Dr. Saurabh Dhakad & Anr. Vs. State of M.P. & Ors )

Gwalior Dt. 28.04.2020

Petitioner No. 1 Dr. Saurabh Dhakad in person.

Shri Pumshaindra Kaurav, learned Advocate General, for the

respondent/State of Madhya Pradesh.

All the parties have been heard through medium of Video

Conferencing.

This Court on the last occasion i.e. 16.03.2020 had enquired

from the State as to whether the decisions rendered by the

Allahabad High Court and Chhasttisgarh High Court (Annexures

P-4 and P-5) attained finality or are under challenge before the

higher forum.

Shri Kaurav, learned Advocate General, on being asked about

the aforesaid, submits that since he has received the file and

instructions only a short while ago, he wants further time to answer

the query raised by this Court on 16.03.2020.

The petitioner who appears in person submits that next round

of counselling is scheduled to start from 04th of May, 2020 and thus

expresses urgency.

Accordingly, State is granted further time to seek instructions

as regards order dated 16.03.2020.

K

K>

WP.6429.20202

The matter stands adjourned with liberty to the petitioners to

pray before Hon'ble the Chief Justice for early hearing of the matter.

(Rajeev Kumar Shrivastava) Judge

(Sheel Nagu) Judge

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