NIKHIL HIMTHANIversusSTATE OF UTTARAKHAND & ORS.

                     [2013) 14 S.C.R. 23

                       NIKHIL HIMTHANI                               A
                                v.
            STATE OF UTTARAKHAND & ORS.
         (Writ Petition (Civil) No. 379 of 2013 etc.)
                      AUGUST 06, 2013
                                                                     B
         [A.K. PATNAIK AND FAKKIR MOHAMED
                IBRAHIM KALIFULLA. JJ.]

     Education/Educational Institution - Admission - Medical
college - Post graduate course - Information Bulletin issued         C
by State providing eligibility for admission in post-graduate
course in medical colleges of the State - Bullettin providing
preference to the candidates on the basis of domicile for
admission to the courses - Writ Petition challenging the
Information Bulletin - Held: Giving preference to the                D
candidates for admission to Post-graduate Courses in the
Medical Colleges of the State, on the basis of domicile within
the .State is violative or Art. 14 of the Constitution - Hence the
eligibility criteria quashed and the Information Bulletin
declared void.                                                       E
      The petitioner got admission in the MBBS Course in
the Medical College at Haldwani in the State of
Uttarakhand. However, his admission in the MBBS
Course was not through Uttarakhand State PMT. Having
c:ompleted the course, the petitioner appeared in NEET               F
Examination 2013 for admission to post-graduate medical
t;ourses, wherein he secured 60th rank of the State of
llJttarakhand. Government of Uttarakhand published
'Information Bulletin for counselling for Uttarakhand
through NEET. In the Information Bulletin, the eligibility           G
criteria specified in Clause 1 excluded institutional
preference to ~he candidate who had got admission in
the MBBS Course in the State Medical Colleges not

                               23                                    H
    24      SUPREME COURT REPORTS             [2013] 14 S.C.R.

A through State PMT; and Clause 2 and 3 provided
  eligibility criteria to the candidates who were domicile of
  State of Uttarakhand.

      The petitioner filed the present petition for quashing
  Clauses 1, 2 and 3 of the Eligibility Criteria in the
8
  Information Bulletin on the ground that the clauses are
  discriminatory and violative of Art.14 of the Constitution.

         Allowing the petition, the Court

c       HELD: 1. Giving institutional preference is a matter
  of State Policy which can be invalidated only in the event
  of it being violative of Article 14 of the Constitution. merit
  must be the test for selecting candidates, particularly in
  the higher levels of education like post-graduate medical
0 courses, such as MD. Excellence cannot be compromised
  by any other consideration for the purpose of admission
  to post-graduate medical courses such as MD/MS and
  the like because that would be detrimental to the interests
  of the nation and therefore reservation based on
E residential requirement in the State will affect the right to
  equality of opportunity under Article 14 of the
  Constitution. (Paras 10 to 12] (32-G-H; 33-B-C, G-H]

       2. In the present case, under clause 5 of the Eligibility
  Criteria, merit as determined through NEET is the basis
F for admission to the post-graduate medical courses. But
  as per clause 1 of the Eligibility Criteria, the candidates
  who have passed MBBS examination from different
  colleges in the State of Uttarakhand are eligible for
  admission to the medical post-graduate courses in the
G State quota only if they were admitted through the
  Uttarakhand State PMT. The petitioner, who has studied
  the MBBS Course in the Government Medical College at
  Haldwani in the State of Uttarakhand was not admitted
  to the aforesaid course through the Uttarakhand State
H PMT examination. The Medical College at Haldwani was
   NIKHIL HIMTHANI v. STATE OF UTTARAKHAND             25


not a Government College in 2007 and therefore in the A
Medical College at Haldwani, there was no All India Quota
at that time. The fact however remains that the petitioner
had the merit to be admitted in MBBS Course in 2007
when he was actually admitted in the Medical College at
Haldwani. Therefore, to exclude the petitioner from B
consideration on the basis of his merit only on the ground
that he was not admitted to the MBBS course through the
Uttarakhand PMT would be to deny him equality of
opportunity in matter of admission to the post-graduate
medical course and to violate his right to equality under c
Article 14 of the Constitution. [Para 13] [34-E-H; 35-A-C]

    Dr. Pradeep Jain and Ors. vs. Union of India and Ors ..
(1984) 3 sec 654: 1984 (3) SCR 942 - relied on.

     3. A candidate who is not a domicile of Uttarakhand D
State is not eligible for admission to post-graduate course
under clauses 2 and 3 of the Eligibility Criteria.
Preference, therefore is given only on the basis of
residence or domicile in the State of Uttarakhand under
clauses 2 and 3 of the Eligibility Criteria and such E
preference on the basis of residence or domicile within
a State has been held to be violative of Article 14 of the
Constitution. No preference can be given to candidates
on the basis of domicile to compete for the institutional
quota of the State, if such candidates have done their F
MBBS course in colleges outside the State. Hence,
clauses 2 and 3 of the Eligibility Criteria in the Information
Bulletin are also violative of Article 14 of the Constitution.
[Paras 14 and 15] [35-E-F; 37-D-E]

     4. Therefore, the clauses 1, 2 and 3 of the Eligibility G
Criteria in the Information Bulletin are quashed and the
admissions made on the basis of clauses 1, 2 and 3 of
the Information Bulletin is declared as void. The
respondents will now publish a fresh Information Bulletin
and re-do the admissions to the post-graduate medical H
    26       SUPREME COURT REPORTS                [2013) 14· S.C.R.


A   courses in the Government colleges of State of
    Uttarakhand in accordance with law. [Para 16) [37-F-G]

        Saurabh Chaudri and Ors. vs. Union of India and Ors.
    (2003) 11 SCC 146: 2003 (5) Suppl. SCR 152 - followed.
B
        Dr. Pradeep Jain and Others vs. Union of India and
    Others (1984) 3 SCC 654: 1984 (3) SCR 942; Magan
    Mehrotra and Ors. vs. Union of India and Ors. (2003) 11 SCC
    186; Dr. Jagadish Saran and Ors. vs. Union of India (1980)
    2 SCC 768: 1980 (2) SCR 831 - relied on.
c
        Dr. Parag Gupta vs. University of Delhi and Ors. (2000)
    5 SCC 684: 2000 (3) SCR 633 - referred to.
                          Case Law Reference:
D        (2003) 11 sec 186            relied on           Para 5
         2003 (5) Suppl. SCR 152 followed                 Para 10
         1980 (2) SCR 831             relied on           Para 11
         1984 (3) SCR 942             relied on           Para 13
E
         2000 (3) SCR 633             referred to         Para 15
        CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
    379 of 2013.
F        Under Article 32 of the Constitution of India.

                                 WITH

    Cont Petn. No. 220 of 2013 in W. P. (C) No 379 of 2013
G       Rakesh Dwivedi, Asha Jain Madan, Mukesh Jain,
    Abhishek Atrey, Prateek Dwivedi , Aishverya Shandilya,
    Babita,Tyagi, Amit Kumar, Rituraj Kumar, Rekha Bakshi, Avijit
    Mani Tripathi for the appearing parties

H        The Judgment of the court was delivered by
     NIKHIL HIMTHANI v. STATE OF UTTARAKHAND                   27


     A.K. PATNAIK, J. 1. In this writ petition under Article 32       A
of the Constitution, the petitioner has made a grievance that
his fundamental right to equality in the matter of admission in
post-graduate medical course in the State quota in the medical
colleges in the State of Uttarakhand guaranteed by Article 14
of the Constitution has been violated by respondent nos. 1 and        s
2.
Facts:

     2. The facts very briefly are that the petitioner is a
permanent resident of Delhi and had qualified in the All India C
Pre-Medical Test conducted by the Central Board of Secondary
Education (for short 'the CBSE') for the 15% seats reserved
for the All India quota. He was admitted in the MBBS course
in the year 2007 in the Medical College at Haldwani in the State
of Uttarakhand. He completed his MBBS course in March, D
2012 and thereafter completed one year of internship in March,
2013. The petitioner then appeared in the NEET Examination,
2013 conducted by the Medical Council of India (for short 'the
MCI') for admission to post-graduate medical courses in India
and qualified in the examination and claims to have secured E
60th rank of the State of Uttarakhand.

     3. On 07.06.2013, the Department of Medical Education,
Government of Uttarakhand, Dehradun, published an
Information Bulletin for counselling for Uttarakhand State quota
seats in MD/MS/MOS/PG Diploma courses in the medical/                 F
dental colleges of Uttarakhand State through NEET PG-2013/
MDS-2013 for the academic session 2013-14. In this
Information Bulletin, the Eligibility Criteria for admission to the
post-graduate medical/dental courses was as follows:
                                                                      G
      "Eligibility Criteria:

      The Counselling for admission shall be open to such
      candidates who:

      1. Have passed the MBBS/BDS Examination from                    H
    28      SUPREME COURT REPORTS                    [2013] 14 S.C.R.


A        Uttarakhand viz. Government Medical College, Haldwani,
         Shri Guru Ram Rai Institute of Medical Sciences, Patel
         Nagar Dehradun, Himalayan Institute of Medical Sciences,
         Jolly Grant, Dehradun, Uttaranchal Dental College, Maajri
         Grant, Dehradun & Seema Dental College, Rishikesh and
B        were admitted through competitive examination
         (Uttarakhand State PMT) and not through NRI/
         ManagemenUlnstitute Quota.

         2. Are Domicile of Uttarakhand and have passed MBBS/
         BOS examination from Medical/Dental Colleges of other
c        States, recognized by MCl/DCI, and were admitted through
         15% All India Quota (allotted by Government of India).

         3. Are Domicile of Uttarakhand and have passed MBBS/
         BOS examination from Medial/Dental Colleges of other
D        States in India, recognized by MCl/DCI, and were admitted
         through Pre Medical Entrance Test conducted by the
         concerned State Government.

         4. Have completed Compulsory Rotatory Internship
         Training on or before 31.03.2013.           '
E
         5. The eligible candidates who get selected through
         NEET-PG 2013/NEET (MDS)-2013 will be given
         admission on available seats in post graduate courses by
         Counselling Board according to their rank in S!ate merit
F        list, made available· by NBE/MCl/DCl/AllMS and the seat
         available at that time.

         6. Having name in·the State merit list of eligible candidates
         provided by MCl/DCl/NBE/AllMS will not be the right of the
G        candidate for getting PG seats unless he/she fulfills all the
         eligibility criteria regarding Domicile, reservation policy,
         provisions of bond etc. mentioned in the information bulletil')
         and /or amendments made thereafter till the time of
         conselling."
H        4. It will be clear from clause 1 of the Eligibility Criteria that
       NIKHIL HIMTHANI v. STATE OF UTTARAKHAND                     29
                   [A.K. PATNAIK, J.]
    a candidate must have passed MBBS examination from A
    Uttarakhand in any of the colleges named therein and must
    have been admitted through the competitive examination,
    namely, Uttarakhand State PMT. The petitioner was not
    admitted through the Uttarakhand PMT to the Medical College,
    Haldwani and therefore did not fulfill the eligibility criteria for s
    admission to the medical post-graduate course under clause
    1 of the Eligibility Criteria. It will be further clear from clause 2
    of the Eligibility Criteria that candidates who are domicile of
    Uttarakhand and passed MBBS examination from medical
    colleges from other States and were admitted through 15% All c
    India quota were also eligible for admission to the post-
~   graduate medical courses. The petitioner was not a domicile
    of Uttarakhand and had not passed MBBS examination from
    a medical college of other States and therefore was not eligible
    for admission to the post-graduate course also under clause
                                                                          0
    2 of the Eligibility Criteria. Under clause 3 of the Eligibility
    Criteria, candidates who are domicile of Uttarakhand and have
    passed MBBS from medical colleges of other States in India ·
    and were admitted through pre-medical test conducted by the
    concerned State Government were eligible for admission to the
    post-graduate medical course. As the petitioner is not a E
    domicile of Uttarakhand and had not passed MBBS from a
    medical college of some other State in India he was not eligible
    even under clause 3 of the Eligibility Criteria. The petitioner,
    therefore, could not get an opportunity to continue his pQ.l)t-
    graduate medical course in the State quota in the Medical F
    Colleges in the State of Uttarakhand even though in the merit
    list of NEET (PG-2013) he claims to have secured 6oth rank
    of the State of Uttarakhand. He has thus filed this writ petition
    for quashing clauses 1, 2 and 3 of the Eligibility Criteria in the
    Information Bulletin on the ground that the clauses are G
    discriminatory and violative of Article 14 of the Constitution of
    India.

    Contentions of learned counsel for the petitioner:

         5. Ms. Asha Jain Madan, learned counsel for the petitioner,     H
    30       SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A   submitted that this Court has held in Dr. Pradeep Jain and
    Others vs. Union of India and Others [(1984) 3 SCC 654) that
    so far as admissions to post-graduate courses, such as MS,
    MD, and the like are concerned, it would be eminently desirable
    not to provide for any reservation based on residence
B   requirement within the State, but having regard to broader
    considerations of equality of opportunity and institutional
    continuity in education which has its own importance and value,
    a certain percentage of seats may be reserved on the basis
    of institutional preference in the sense that a student who has
C   passed MBBS course from a medical college or university, may
    be given preference for admission to the post-graduate course
    in the same medical college or university. She further submitted
    that the view taken by this Court in Dr. Pradeep Jain's case
    (supra) has been reiterated in Magan Mehrotra and Others vs.
D   Union of India and Others ((2003) 11 SCC 186) in which the
    information bulletin issued by Delhi University was found to be
    contrary to the direction of this Court in Dr. Pradeep Jain's case
    and was thus quashed.

         6. She submitted that clauses 2 and 3 of the Eligibility
E   Criteria in the impugned information bulletin which made
    candidates who are domicile of Uttarakhand eligible for
    admission to the post-graduate courses in the medical colleges
    of Uttarakhand in the State quota are therefore contrary to the
    directions of this Court in Dr. Pradeep Jain's case (supra) as
F   reiterated in Magan Mehrotra. and Others vs. Union of India
    and Others (supra). She submitted that similarly clause 1 of the
    Eligibility Criteria, inasmuch as, it excludes candidates who
    have completed MBBS course in the medical college of the
    State but have not been admitted to the MBBS course through
G   the Uttarakhand PMT from admissions in the post-graduate
    medical courses in the State quota in the medical colleges in
    the State of Uttarakhand is also contrary to the directions of
    this Court in Dr. Pradeep Jain's case (supra). She vehemently
    submitted that the directions in the judgment of this Court in Dr.
H   Pradeep Jain's case (supra) for giving institutional preference
   NIKHIL HIMTHANI v. STATE OF UTTARAKHAND                  31
                [A.K. PATNAIK, J.]
would mean that candidates studying in MBBS course in any A
institution in the State of Uttarakhand should be given a
preference to continue the post-graduate course in the same
institution.

Contentions of learned counsel for the respondents:               8
      7. In reply, Mr. Rakesh Dwivedi, learned senior counsel
appearing for the State of Uttarakhand, submitted that clause
1 of the Eligibility Criteria in the Information Bulletin is not a
criteria relating to domicile. He submitted that clause 1 of the
Eligibility Criteria is only an institutional preference permitted C
by the judgment of this Court Dr. Pradeep Jain's case (supra)
as it gives preference to all candidates who have studied
MBBS in the Medical Colleges in the State of Uttarakhand
having been admitted through the Uttarakhand, PMT. He
referred to the additional affidavit filed on behalf of respondent D
nos. 1 and 2 on 22.07.2013 to explain that prior to the year
2009, the Medical College at Haldwani in which the petitioner
was studying MBBS was a private college run by a trust namely
Uttarakhand Forest Hospital Trust and the petitioner must have
been admitted in the management quota. He submitted that it E
was from the academic session 2009-2010 that~ 5% All India
quota in under-graduate medical courses was introduced in this
college and the first batch of All India quota students in
Government Medical College, Haldwani will complete MBBS
only in the year 2014 and will be eligible to take admission in · F
post-graduate medical courses in the academic session 2015-
2016 after completing compulsory internship. He also referred
to the additional affidavit filed on behalf of respondent nos. 1
and 2 to explain that in Vir Chandra Singh Garhwali Medical &
Research Institute, Srinagar, Garhwal also 15% All India quota G
students were given admission from 2008 and the first batch
will be eligible for post-graduate medical courses from amongst
such students admitted to the· All India quota only in the
academic session 2014-2015. He submitted that as no
candidate was given admission in MBBS course in the State H
    32      SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A   of Uttarakhand in the 15% of All India quota in the academic
    session 2007-2008 and it is only the students who had taken
    admission in the MBBS course in the academic session 2007-
    2008 or before who would be seeking admission in post-
    graduate medical courses in the academic session 2013-2014
B   in clause 1 of the Eligibility Criteria, it was not necessary to
    include candidates who had been admitted to the 15% All India
    quota on the basis of All India PMT conducted by the CBSE.

         8. He submitted that clauses 2 and 3 of the Eligibility
C   Criteria in the Information Bulletin, however, give candidates
    who have passed MBBS course in the colleges outside the
    State, a preference if they are domicile in the State of
    Uttarakhand. He submitted that clauses 2 and 3 are dilutions
    of the institutional preference under clause 1 of the Eligibility
    Criteria in the impugned information bulletin, inasmuch as, it
0
    gives opportunity to a domicile of Uttarakhand who has studied
    MBBS in a college in.another State to be admitted to a post-
    graduate medical course in the State quota in Uttarakhand.

          9. He cited the Constitution Bench judgment of this Court
E   in Saurabh Chaudri and Others v. Union of India and Others
    [(2003) 11 sec 146] for the proposition that giving institutional
    preference is a matter of State policy which can be invalidated
    only in the event of being violative of Article 14 of the
    Constitution of India. He submitted that the State of Uttarakhand
F   was, therefore, entitled to make its own policy with regard to
    institutional preference in clauses 1, 2 and 3 of the Eligibility
    Criteria.

    Findings of the Court:

G        10. The Constitution Bench of this Court has held in
    Saurabh Chaudri and Others v. Union of India and Others
    (supra) that giving institutional preference is a matter of State
    Policy which can be invalidated only in the event of it being
    violative of Article 14 of the Constitution. Hence, the question
H   that we have to decide in this writ petition is whether clauses
   NIKHIL HIMTHANI v. STATE OF UTTARAKHAND                      33
                (A.K. PATNAIK, J.]
1, 2 and 3 of the Eligibility Criteria in the information bulletin    A
are ultra vires Article 14 of the Constitution of India.

     11. Article 14 of the Constitution guarantees to every
person equality before law and equal protection of laws. In Dr.
Jagadish Saran and Others vs. Union of India ((1980) 2 SCC            B
768), Krishna Iyer J, writing the judgment on behalf of the three
Judges referring to Article 14 of the Constitution held that
equality of opportunity for every person in the country is the
constitutional guarantee and therefore merit must be the test
for selecting candidates, particularly in the higher levels of        C
education like post-graduate medical courses, such as MD. In
the language of Krishna Iyer, J.:

     "Flowing from the same stream of equalism is another
     limitation. The basic medical needs of a region or the
     preferential push justified for a handicapped group cannot       D
     prevail in the same measure all the highest scales of
     speciality where the best skill or talent, must be
     handpicked by selecting according to capability. At the le1Lel
     of Ph.d. M.D., or levels of higher proficiency, where
     international measure of talent is made, where losing one        E
     great scientist or technologist in-the-making is a national
     loss, the considerations we have expanded upon as
     important lose their potency. Here equality, measured by
     matching excellence, has more meaning and cannot be
     diluted much without grave risk ...... "                         F

      12. Relying on the aforesaid reasons in Dr. Jagadish
Saran and Others vs. Union of India (supra) a three Judge
Bench of this Court in Dr. Pradeep Jain's case (supra) held that
excellence cannot be compromised by any other consideration
for the purpose of admission to post-graduate medical courses         G
such as MD/MS and the like because that would be detrimental
to the interests of the nation and therefore reservation based
on residential requirement in the State will affect the right to
equality of opportunity under Article 14 of the Constitution but:
                                                                      H
     34       SUPREME COURT REPORTS                [2013] 14 S.C.R.


A         "a certain percentage of seats may in the present
          circumstances be reserved on the basis of institutional
          preference in the sense that a student who has passed
          MBBS course from a medical college or university, may
          be given preference for admission to the post-graduate
B         course in the same medical college or university".

           This view expressed in Dr. Pradeep Jain's case has been
     reiterated by another three Judge Bench of this Court in Magan
     Mehrotra and Others vs. Union of India and Others (supra)
     after a reconsideration and independent examination .
.c
          13. Keeping in mind the aforesaid law as laid down by this
     Court, we may now consider the Eligibility Criteria in the
     Information Bulletin. On a reading of clause 5 of the Eligibility
     Criteria, we find that eligible candidates who get elected
D    through NEET PG-2013/NEET (MOS) -2013 will be given
     admission on available seats in post-graduate courses by
     Counselling Board according to their rank in State Merit List.
     Hence, under clause 5 of the Eligibility Criteria merit as
     determined through NEET is the basis for admission to the
E    post-graduate medical courses. But when we look at clause 1
     of the Eligibility Criteria, we find that the candidates who have
     passed MBBS examination from different colleges in the State
     of Uttarakhand are eligible for admission to the medical post-
     graduate courses in the State quota only if they were admitted
F    through the Uttarakhand State PMT. The petitioner, who has
     studied the MBBS Course in the Government Medical College
                                            '
     in Haldwani, was not admitted to the aforesaid course through
     the Uttarakhand State PMT examination, but it has been
     admitted in the additional affidavit filed on behalf of the
G    respondent nos. 1 and 2 on 22.07.2013 that the petitioner had
     qualified in the pre-medical examination in the year 2007 for
     admission in the All India Quota. It so happened that the Medical
     College at Haldwani was then not a (3overnment College in
     2007 and therefore in the Medical College at Haldwani, there
H    was no All India Quota at that time. The fact however remains
    NIKHIL HIMTHANI v. STATE OF UTTARAKHAND                     35
                [A.K. PATNAIK, J.]

that the petitioner had the merit to be admitted in MBBS Course        A
in 2007 when he was actually admitted in the Medical College
at Haldwani. We are thus of the considered opinion that to
exclude the petitioner from consideration on the basis of his
merit only on the ground that he was not admitted to the MBBS
course through the Uttarakhand PMT would be to deny him                B
equality of opportunity in matter of admission to the post-
graduate medical course and to violate his right to equality under
Article 14 of the Constitution as explained by this Court in the
case of Dr. Pradeep Jain and Others vs. Union of India and
Others (supra).                                                        c
      14. We now come to clauses 2 and 3 of the Eligibility
Criteria in the Information Bulletin. Under clauses 2 and 3, a
domicile of Uttarakhand who has passed MBBS from a medical
college of some other State having been admitted either through
the 15% All India quota or through the pre-medical test                D
conducted by the concerned State Government has been made
eligible for admission to a post-graduate medical course in the
State quota. Obviously, a candidate who is not a domicile of
Uttarakhand State is not eligible for admission to post-graduate
course under clauses 2 and 3 of the Eligibility Criteria.              E
Preference, therefore is given only on the basis of residence
or domicile in the State of Uttarakhand under clauses 2 and 3
of the Eligibility Criteria and such preference on the basis of
residence or domicile within a State has been held to be
violative of Article 14 of the Constitution in the case of Dr.         F
Pradeep Jain and Others vs. Union of India and Others (supra)
and Magan Mehrotra and Others vs. Union of India and Others
(supra).

     15. In fact, in Dr. Parag Gupta vs. University of Delhi and G
  Others [(2000) 5 SCC 684] the facts were that Dr. Parag Gupta
 was born and brought up in Delhi but had studied the MBBS
. course in Tamil Nadu having been allotted to Tamil Nadu under
  the 15% All India quota on the basis of his selection on All India
  basis. He filed a writ petition praying that he should be
                                                                       H
    36      SUPREME COURT REPORTS                [2013] 14 S.C.R.


A permitted to participate in the entrance examipation conducted
  by the Delhi University for admission to 75% seats reserved
  for candidates who have passed MBBS in the institutions in
  Delhi. His contention before the Court was that his home State
  is Delhi and he had gone out to the State of Tamil Nadu to
B pursue his studies on All India quota and he should now be
  allowed to participate in the competition for the post-graduate
  seats reserved for the students passing MBBS from institutions
  under Delhi University. The Delhi University and the intervening
  students of different institutions under Delhi University who were
C competing for the institutional quota of Delhi University raised
  an objection to the aforesaid contention of Dr. Parag Gupta. A
  two Judge Bench of this Court allowed Dr. Parag Gupta to
  participate in the competitive examination for the institutional.
  quota of Delhi University and rejected the objection of the Delhi
  University and the intervening students in the· io'11owing words:
0
       "12. The objection of the University and the intervening
       students is that such students will have an unfair advantage
       of competing in all-India quota + home State quota +
       institutional quota in that University where they studied. We
E      fail to see any unfair advantage in this regard inasmuch
       as all students have to take common entrance test with
       reference to their home State and face stiff competition.
       The students in the home State if at all are put to
       disadvantage only to a small degree of taking competition
F      with respect to very few stutlents falling in that category of
       the petitioners. On the other hand, inclusion of such
       students will make it broad-based as well thereby striking
       a balance. Thus, we think, if students of the home State
       are also allowed to participate in the entrance test, there
G      will   be uniformity all over the country and small
       disadvantage removed with respect to a small section of
       the student community does not disturb the balance and
       the advantage derived achieves uniformity."

         These reasons given by the two Judge Bench of this Court
H
   NIKHIL 1-ilMTHANI v. STATE OF UTTARAKHAND                         37
                 [A.K. PATNAIK, J.]
in Dr. Parag Gupta vs University of Delhi and Others (supra)                 A
did not find the approval of the larger Bench of three Judges
in Magan Mehrotra and Others vs. Union of India and Others
(supra) which held:

     "A bare look at the judgment of the three-Judge Bench in                B
     Pradeep Jain case and two-Judge Bench in Parag Gupta
     case in relation to the question of preference in the
     postgraduate course, it cannot but be held that Parag
     Gupta case took a different view by upholding the
     residential preference, in essence, which was contrary to
     th,e judgment of the three-Judge Bench in Pradeep Jain                  C
     case."

     Thus, it will be clear from what has been held by the three-
Judge Bench of this Court in Magan Mehrotra and Others vs.
Union of India and Others (supra) that no preference can be                  o
given to candidates on the basis of domicile to compete for
the institutional quota of the State if such candidates have done
their MBBS course in colleges outside the State in view of the
decisions of this Court in Dr. Pradeep Jain and Others vs.
Union of India and Others (supra). Hence, clauses 2 and 3 of                 E
the Eligibility Criteria in the Information Bulletin are also violative
of Article 14 of the Constitution.

     16. In the result, we allow the writ petition, quash clauses
1, 2 and 3 of the Eligibility Criteria in the Information Bulletin
and declare the admissions made on the basis of clauses 1,                   F
2 and 3 of the Information Bulletin as void. The respondents
will now publish a fresh Information Bulletin and re-do the
admissions to the post-graduate medical courses in the
Government colleges of State of Uttarakhand in accordance
with law by the end of August, 2013 and also ensure that the                 G
colleges in which the students are admitted in post-graduate
medical courses hold the required number of classes as
prescribed by the MCI.

Kalpana K. Tripathy                                Writ Petition allowed ,   H