(1) The petitioner completed the M.B.B.S. degree course during 1979 to 1985 from M.R. Medical College, Gulbarga, and he also completed the House Surgeonship during the said period. Thereafter, the petitioner secured a merit seat for M.S. in General Surgery which he completed during 1986 to 1989 from Bangalore University. The petitioner was desirous of applying for Super Speciality course in Surgery and was keen on joining M. Ch. Urology or Pediatric Surgery. These Super Speciality Courses are conducted only in combined hospitals attached to Bangalore Medical College and it is stated that only the Government Institutions which offer these courses and that the allotment of seats is controlled by the Government of Karnataka under rules known as the Karnataka Medical College and Dental Colleges (Selection and Admission to P.G. Course) Rules, 1987. The Super Speciality courses offered by the Bangalore University are as follows:-

1. M. Ch in Cardio Thorasic Surgery;

2. M. Ch in Plastic Surgery;

3. M. Ch in Pediatric Surgery, and 4. M. Ch in Urology.

According to the petitioner, even to this day, the Government of Karnataka did not notify and invite applications from eligible candidates for the said courses. On 13-1-1989, a notification was issued by the authorities purporting to exercise power under sub-rule (2) of Rule 5 of the aforesaid Rules notifying the seats for admission from the inservice candidates only in the service of the Government of Karnataka thus earmarking all the seats of Super Speciality courses to inservice candidates only for 1988-89. Thereafter followed another notification dated 29-6-1989 issued by respondent-1 calling for applications for P.G. Super Speciality course restricted to inservice candidates only. According to the petitioner, the Government was adopting the policy of allotting 50% of the seats for inservice candidates throwing open the remaining 50% to the general merit category and a notification making reservations in the said manner is to be found in Notification No. HFW 61 MPS 86 dated 23-1-1987 and the latest notification is dated 18-9-1989 in similar terms. It is stated that inservice candidates have already filed applications in pursuance of the notification to join the super Speciality P.G. course and, at the time of filing the writ petition, the scrutiny of the applications was in progress besides the process of selection of the candidates. It is stated that the petitioner is not in a position to secure any seat outside the State for Super Speciality P.G. course since he is a M.B.B.S. from the State of Karnataka. The grievance of the petitioner is that, by virtue of the said notifications, the petitioner is deprived of his right of admission to the Super Speciality Course of his choice.

(2) The learned Counsel appearing for the petitioner submitted that the impugned notifications are arbitrary, illegal and violative of Art.14 of the Constitution of India inasmuch as all the seats for admission to the Super Speciality P.G. course have been earmarked only to inservice candidates leaving no scope for any other candidates belonging to other categories. It was also contended that there is neither rational basis, nor lawful justification for reservation of 100% of the seats for inservice candidates. In support of his contentions, the learned Counsel appearing for the petitioner relied on the decisions reported in, AIR 1984 SC 1420 [LQ/SC/1984/157] ; AIR 1989 SC 48 [LQ/SC/1988/489] and AIR 1989 SC 903 [LQ/SC/1989/95] .

(3) The learned Counsel also submitted that the notifications issued purportedly under Rule 5 of the aforesaid Rules does not provide for reservation of seats for the courses in question. It was submitted that Rule 5 refers only to admission to P.G. Degree and P.G. Diploma courses in Medicine and Dental inclusive of both Government and Private Medical Colleges and that they do not refer to Super Speciality courses mentioned above with which we are concerned in this writ petition. It was pointed out that though Rule 2(j) defines Super Speciality, there is no mention of Super Speciality Course in Rule 5 at all and, therefore, the reservation in favour of the inservice candidates does not stand legal scrutiny.

(4) The learned Government Pleader appearing for the respondents submitted on the basis of the statement of objections filed in Writ Petition No.339 of 1989 which is connected with this writ petition that the Government wanted to train only its staff in Super Speciality Course available in M.Ch. (Cardio Thorasic Surgery), M.Ch. (Paediatric Surgery), M.Ch. (Urology) and D.M. (Cardiology). It was stated that in all there are 10 seats in each of the P.G. courses and that the Super Speciality Courses are available only in Bangalore Medical College. In order to teach P.G. courses, students in Government Medical Colleges requires teaching personnel with super specialisation and hence the Bangalore Medical College is being utilised as a Captive Training Centre in order to impart training to the departmental teaching personnel so that they could qualify themselves for teachers to the P.G. courses, and hence it is submitted that there is an intelligible differentia between inservice doctors and other students and the specific object sought to be achieved is the upgrading of the skills of inservice doctors. As such, it is submitted that, there is no violation of Art.14 or 16 of the Constitution.

(5) The point which arises for consideration is whether the wholesale earmarking of all the seats for Super Speciality P.G. Course in the subjects referred to earlier is violative of the equality clause under Art.14 of the Constitution and also whether it infringes Art.16 of the Constitution in the facts and circumstances of this case.

(6) In Fazal Ghafoor v. Union of India, AIR 1989 SC 48 [LQ/SC/1988/489] , the Supreme Court has held as follows (Para 2) :-

"In Dr. Pradeep Jains case (1984) 3 SCC 654 [LQ/SC/1984/157] this Court has observed that in Super Specialities there should really be no reservation. This is so in the general interest of the country and for improving the standard of higher education and thereby improving the quality of available medical services to the people of India. We hope and trust that the Government of India and the State Governments shall seriously consider this aspect of the matter without delay and appropriate guidelines shall be evolved by the Indian Medical Council so as to keep the Super Specialities in medical education unreserved, open and free."

Again in Deepak Sibal v. Punjab University, AIR 1989 SC 903 [LQ/SC/1989/95] , the Supreme Court has held as follows (Paras 25 and 26) :-

"But, the next important question is even if the restriction from the impugned rule is removed and the admission to evening classes is made open to regular or bona fide employees including Government and non-Government employees, whether reservation of cent per cent seats in the evening classes for the employees will be justified and reasonable. It has been urged by Mr. Kapil Sibal, learned Counsel appearing on behalf of the appellants, that reservation of 100 per cent seats in an educational institution for a specified class of persons is not at all permissible. The university, being an autonomous body, must be accessible, and such access must be based on the principle that those who are the most meritorious must be preferred to those who are less meritorious. This principle is, however, subject to the provision of Art.15 of the Constitution which allows positive discrimination, despite the merit principle, on the basis that the equality clause will not be meaningful unless equal opportunity is given to such classes enumerated by Art.15 by giving them preferential treatment. Apart from the provision of Art.15, reservation may be made on the basis of doctrine of source only with a view to giving equal opportunity to some disadvantaged classes for their education but, learned Counsel submits, whether the reservation is made under Art.15(4) of the Constitution or otherwise on the theory of identification of source, in any event, such reservation cannot be 100 per cent at the cost of merit. In our opinion, the above contention is not without force. In this connection, we may refer to a decision of this Court in M.R. Balaji v. State of Mysore, (1963) Supp (1) SCR 439: AIR 1963 SC 649 [LQ/SC/1962/324] . In that case, the State of Mysore passed an order reserving 68 per cent of seats in the engineering and medical colleges other technical institutions for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes, and left only 32 per cent of seats for the merit pool. In striking down such reservation, it was observed by this Court that it would be extremely unreasonable to assume that in enacting Art.15(4), Parliament intended to provide that where the advancement of the backward classes or the scheduled Castes and Scheduled Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored. Speaking generally and in a broad way, it was observed by this Court that a special provision should be less than 50% and the actual percentage must depend upon the relevant prevailing circumstances in each case. Thus, the provision of Art.15(4) does not contemplate to reserve all the seats or the majority of the seats in an educational institution at the cost of the rest of the society. The same principle should also apply with equal force in the case of cent per cent reservation of seats in educational institutions for a certain class of persons to the exclusion of meritorious candidates."

In Pradeep Jain v. Union of India, AIR 1984 SC 1420 [LQ/SC/1984/157] which is relied upon in AIR 1989 SC 48 [LQ/SC/1988/489] , the Supreme Court observed as follows :-

"But even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neurosurgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis."

(7) The above authorities support the main contention urged on behalf of the petitioner that the exclusion of candidates other than those who are inservice is discriminatory and violative of Art.14 of the Constitution. There can be no two opinions about this proposition in the light of the repeated pronouncements of the Supreme Court on the question. In Pradeep Jains case (AIR 1984 SC 1420 [LQ/SC/1984/157] ) the observation made by the Court is apposite to the facts of this case even though the question that was considered in the said decision was whether reservation based on the ground of domicile denying seats to the candidates from outside was violative of Art.14. The decision is of far reaching consequences. The principle, if strictly applied, excludes any kind of reservation whatsoever on the basis of domicile in the said case in so far as admissions relate to Super Specialities, such as Neuro-Surgery and Cardiology. If this principle is extended for admission to Super Speciality courses, exclusion of candidates who do not belong to inservice category and allotment of seats only to candidates belonging to inservice category, would be impermissible if analogy is to be drawn with the legal position as propounded in the said decision where exclusion of outsiders was based purely on the ground of domicile. Secondly, in the light of the principle laid down by the Supreme Court in AIR 1989 SC 48 [LQ/SC/1988/489] extracted above which is directly on the point, it is not possible to accept the contention taken by the respondents that there is an intelligible differentia between linservice doctors and other students and the object sought to be achieved is the upgrading of the skills of inservice doctors and, therefore, there is no violation of Art.14 or 16 of the Constitution. What is relevant for consideration is whether the total earmarking of the seats in favour of inservice doctors, however well intention the object might be, could be at the cost of other candidates who do not belong to the inservice category that may be equally or even superior to the candidates available in the inservice category whatever the field in which their talent and service may be available to the people. Applying the principles to which I have referred, I hold that the impugned notifications dated 6/13-1-1989, 29-6-1989 and 18-9-1989 are violative of Art.14 and, therefore, liable to be quashed.

(8) In view of the fact that I have held that the impugned notifications are bad in law, it is not necessary for me to go into the question whether sub-rule (2) of Rule 5 of the aforesaid Rules is ultra vires, discriminatory and unconstitutional. I may also mention that the learned Counsel appearing for the petitioner did not press this intention and chose to reserve it for being raised in a more appropriate occasion.

(9) It was submitted by the learned Government Pleader appearing for the respondents that all the admissions have been completed and further that the candidates have already gone through one year course from the date of admission. It was also submitted that the respondents could only consider the admission of the petitioner for the next batch.

(10) In the result, for the foregoing reasons, the writ petition is allowed. Rule made absolute. The impugned notifications dated 6/13-1-1989, 29-6-1989 and 18-9-1989 are quashed. The respondents are directed to consider the case of the petitioner at the time of selection of the next batch of candidates for the Super Speciality course in the subject Urology or Pediatric Surgery in M. Ch. which may be completed within ninety days from the date of receipt of a copy of this order. It is made clear that the State Government is at liberty to lay down a policy bearing in mind the principles laid down by the Supreme Court in Pradeep Jains case (AIR 1984 SC 1420 [LQ/SC/1984/157] ). It is also made clear that this order shall not in any way affect the candidates who have been already admitted pursuant to the impugned notifications. Petition allowed.