YATINKUMAR JASUBHAI PATEL AND OTHERSversusSTATE OF GUJARAT AND OTHERS

848                      [2019]
              SUPREME COURT     12 S.C.R. 848
                             REPORTS                     [2019] 12 S.C.R.


A            YATINKUMAR JASUBHAI PATEL AND OTHERS
                                      v.
                    STATE OF GUJARAT AND OTHERS
                        (Civil Appeal No 7939 of 2019)
B                            OCTOBER 04, 2019
         [ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
           Education/Educational Institutions:
            Rules framed by University – Providing for institutional
C     Reservation/Preference – For admission in post-graduate medical
      course – Challenged as being violative of Medical Council Act
      and Post Graduate Medical Education Regulations after
      introduction of NEET Scheme – Petition dismissed by High Court
      – Appeal to Supreme Court – Held: Institutional Preference/
      Reservation to the extent of 50% of total number of open seats is
D
      permissible – Introduction of NEET Scheme shall not affect such
      preference – Therefore the regulations providing for institutional
      Preference/Reservation are not ultra vires to s. 10D of Medical
      Council Act – Medical Council Act, 1956 – s. 10D – Post Graduate
      Medical Education Admission Regulations – Reg. 9.
E
           Dismissing the appeals/writ petitions, the Court
            HELD: 1. The purpose and object of the introduction of
      the NEET Scheme was to conduct a uniform entrance
      examination for all medical educational institutions at the under-
      graduate level or post-graduate level and admissions at the
F
      under-graduate level and post-graduate level are to be given
      solely on the basis of the merits and/or marks obtained in the
      NEET examination only. The only obligation by virtue of
      introduction of NEET is that, once centralized admission test is
      conducted, the State, its agencies, Universities and institutions
G     cannot hold any separate test for the purpose of admission to
      Post-Graduate and PG and Diploma Courses and such seats are
      to be filled up by the State agencies, Universities/Institutions
      for preparing merit list as per the score obtained by the
      applicants in NEET examination and therefore by introduction
      of the NEET, Section 10D of the MCI, Act has been amended,
H
                                     848
      YATINKUMAR JASUBHAI PATEL AND OTHERS v.                           849
            STATE OF GUJARAT AND OTHERS

consequently amendment to the Post-Graduate Education                   A
Regulations, 2000, admission to Post Graduate Courses are
made providing for solely on the basis of the score secured by
the candidates seeking admission based on centralized
examination, i.e. NEET. [Para 10.3] [858-C-G]
       2. Under the circumstances, introduction of the NEET             B
Scheme, as such, has nothing to do with the “Institutional
Preference”. Therefore, the change by introduction of the NEET
Scheme shall not affect the Institutional Preference/Reservation
as approved by this Court from time to time in catena of
decisions. Under the guise of introduction of the NEET Scheme,          C
the petitioners cannot be permitted to re-agitate and/or re-open
the issue with respect to Institutional Preference which has been
approved and settled by this Court in catena of decisions. [Para
10] [859-A-C]
      3. Thus, Institutional Preference to the extent of 50% is         D
approved and it is observed and held that introduction of the
NEET Scheme shall not affect such Institutional Preference/
Reservation. Such a regulation providing 50% Institutional
Preference/Reservation shall not be in any way ultra vires to
Section 10D of the Medical Council Act. Even otherwise, even
in the case of Institutional Preference/Reservation, the                E
admissions in the post graduate courses are to be given on the
basis of the merits and marks obtained in the NEET examination
result only. [Para 12] [860-A-B]
      4. So far as the question that if the 50% seats are reserved
for State quota and if institutional preference/reservation is          F
permitted to the extent of 50% of the total number of open seats,
in that case, not a single seat in the State quota shall be available
is concerned, it will be for the appropriate authority/State to
consider how much percentage seats are to be reserved for
Institutional Preference/Reservation. It will be in the realm of        G
a policy decision and this Court cannot substitute the same,
unless it is held to be arbitrary and/or mala fide and/or not
permissible. [Para 11] [859-C-D-F]
      Saurabh Chaudri v. Union of India 2003 (11) SCC
      146 : [2003] 5 Suppl. SCR 152 – followed.                         H
850            SUPREME COURT REPORTS                     [2019] 12 S.C.R.


A           Dr. Pradeep Jain v. Union of India (1984) 3 SCC
            654 : [1984] 3 SCR 942 ; AIIMS Students’ Union v.
            AIIMS (2002) 1 SCC 428 : [2001] 2 Suppl. SCR 79 ;
            D.N. Chanchala v. State of Mysore (1971) 2 SCC
            293 ; Gujarat University v. Rajiv Gopinath Bhatt
            (1996) 4 SCC 60 : [1996] 2 Suppl. SCR 184 ;
B
            Saurabh Dwivedi v.Union of India (2017) 7 SCC
            626 : [2017] 4 SCR 286 ; Dinesh Kumar (Dr.) (II) v.
            Motilal Nehru Medical College (1986) 3 SCC 727 :
            [1986] 3 SCR 345 – relied on.
            State of U.P. v. Dinesh Singh Chauhan (2016) 9 SCC
C           749 : [2016] 6 SCR 571 – referred to.
                            Case Law Reference
      [1984] 3 SCR 942                  relied on            Para 5.2
      [2003] 5 Suppl. SCR 152          followed              Para 5.2
D
      [2016] 6 SCR 571                  referred to          Para 6.2
      [2001] 2 Suppl. SCR 79            relied on            Para 8
      (1971) 2 SCC 293                  relied on            Para 9
      [1996] 2 Suppl. SCR 184          relied on             Para 9
E
      [2017] 4 SCR 286                  relied on            Para 10.1
      [1986] 3 SCR 345                  relied on            Para 10.3
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7939
      of 2019.
F           From the Judgment and Order dated 22.02.2017 of the High
      Court of Gujarat at Ahmedabad in Special Civil Application No. 19918
      of 2016
            With

G           W. P. (C) No. 122/2018, 1479/2018 and 1142/2019
            Sidharth Luthra, Sr. Adv., Gaurav Agrawal, Puneet Jain,
      Ms. Christi Jain, Harshit Khanduja, Harsh Jain and Abhinav Deshwal,
      Advs. for the Appellants.
            Ajit K. Sinha, Sr. Adv., Ms. Charu Mathur, Ms. Hemantika Wahi,
H     Mitul Shalat, E.C. Agrawala, Mahesh Agarwal, Abhinav Agrawal, Rohan
       YATINKUMAR JASUBHAI PATEL AND OTHERS v.                                851
             STATE OF GUJARAT AND OTHERS

Talwar, Nikhil Goel, Ms. Naveen Goel, Dushyant Sarna, Piyo Harold,            A
Ms. Vishakha, Vibhu Shankar Mishra, Rajan Kumar Chourasia,
Gopal Jha, B.V. Balram Das, Gurmeet Singh Makker, Chirag M. Shroff,
Ms. Mahima C. Shroff, Ms. Yashika Verma, Santosh Kumar - I,
Ms. Dolly Rajbahaeur, Sohan Singh, Ms. Tanvi Reno, Gaurav Sharma,
Dhawal Mohan, Prateek Bhatia, P. Mohan, Harsh Kaushik, Harsh
                                                                              B
Prakash, Mohinder Jit Singh Rupa, Kausik Ghosh, Prang N.,
A.P. Mayee, A Rajarajan, Sanjeev Kumar Choudhary, Advs. for the
Respondents.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.                                                          C
      1. Leave granted in the special leave petition.
     2. The “Institutional Preference” for Post Graduate Medical
Admissions is the core issue involved in these appeal/petitions.
       3. Pursuant to the order passed by a two Judge Bench of this           D
Court dated 12.09.2018, all these appeal/petitions are placed before the
larger Bench.
       4. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 22.02.2017 passed by the Division Bench of the High
                                                                              E
Court of Gujarat in Special Civil Application No. 19918/2016, by which
the Division Bench has dismissed the said writ petition upholding the
vires of Rules 2, 3, 4.1 and 4.3 relating to admission to the Post Graduate
Medical Courses framed by the Gujarat University providing that the
preference shall be given to the candidates graduating from the Gujarat
University (providing for “Institutional Reservation”), the original writ     F
petitioners have preferred the special leave petition/appeal. Thus, the
original writ petitioners are challenging the “Institutional Preference”
in the Post Graduate Medical Courses.
      4.1 Writ Petition (C) No. 1479 of 2018 under Article 32 of the
Constitution of India has been preferred by the petitioners also              G
challenging the policy of “Institutional Preference” for admission to the
Post Graduate Medical Courses insofar as respondent no.3 – University
of Delhi and respondent no.4 – Guru Gobind Singh Indraprastha
University is concerned. Similar prayers are made in Writ Petition (C)
No. 122/2018 and Writ Petition(C) No. 1142/2019 also challenging the          H
852            SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A     policy of “Institutional Preference” in the Post Graduate Medical
      Courses.
             4.2 For the sake of convenience, Civil Appeal arising from Special
      Leave Petition(C) No. 7003/2017 arising out of the impugned judgment
      and order dated 22.02.2017 passed by the High Court of Gujarat is
B     treated and considered as a lead matter and the relevant rules of the
      Gujarat University relating to admission to the Post Graduate Medical
      Courses framed by the Gujarat University are considered.
             5. In exercise of powers under Section 39 read with Section 32
      of the Gujarat University Act, 1949, the Gujarat University has framed
C     the rules for the purpose of governing admission to Post Graduate
      Courses. The relevant Rules are Rules 2, 3, 4.1, 4.2 and 4.3, which
      read as under:
            “2.As per directive of Hon’ble Supreme Court of India, New
            Delhi, 50% of total available seats in Academic year in various
D           post graduate degree and diploma courses in each subject in
            Government Institution/Colleges will be filled up as a All India
            Quota Seats as per All India 50% quota rank by competent
            authority. The remaining seats will be available for the candidates
            passing from Gujarat University in accordance with Rule 4.1.
E           The student passing from other statutory Universities within
            Gujarat State will be considered as per their merit in accordance
            with Rule 4.3.
            3. Remaining 50% (or more) of total seats after Rule 2.0 (and
            Rule 2.1) in post graduate courses will be filled up by the
F           “Admission Committee” of University.
            4.0 Selection: Selection of candidates eligible under rule 1 for seats
            under rule 3.0 will be done category and status wise on the basis
            of merits as laid down herein further.
            4.1 Preference shall be given to candidates graduating from
G
            Gujarat University.
            4.2 Deleted.
            4.3 After the merit list prepared under Rule 4.1 is exhausted the
            candidates graduating from any other University located in
H           Gujarat State will be considered.”
       YATINKUMAR JASUBHAI PATEL AND OTHERS v.                                  853
      STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]

       5.1 As per the aforesaid Rules, 50% of the total available seats         A
in the academic year in various Post Graduate Degree and Diploma
Courses in each subject in Government Institution/Colleges will be filled
up as “All India Quota Seats” by competent authority and the remaining
seats will be filled up in accordance with Rule 4.1 of the Rules of the
University. As per Rule 3 of the Rules, remaining 50% of the total
                                                                                B
seats in Post Graduate Courses will be filled up by the “Admission
Committee” of University. As per Rule 4.3 of the Rules, after merit
list prepared under rule 4.1 is exhausted, candidates graduating from
any other University located in Gujarat State will be considered.
       5.2 The original writ petitioners challenged the vires of the afore-     C
stated Rules providing “Institutional Preference” – giving preference
to the candidates graduating from Gujarat University mainly on the
ground that in view of introduction of the National Eligibility Entrance
Test (hereinafter referred to as ‘NEET’) and the admissions are to be
given solely on the basis of the merits and the marks obtained in the
NEET, the Rules providing “Institutional Preference” shall be violative         D
of the Indian Medical Council Act, 1956 and the Post Graduate Medical
Education Regulations, 2000 framed under the Indian Medical Council
Act. That by the impugned judgment and order and after considering
the decisions of this Court in the cases of Dr. Pradeep Jain v. Union
of India reported in 1984 (3) SCC 654; and Saurabh Chaudri v.                   E
Union of India reported in 2003 (11) SCC 146 and after considering
the scheme of the NEET (PG), the High Court has dismissed the said
petition holding the “Institutional Preference”. Hence, the present appeal
challenging the policy of “Institutional Preference” in the Post Graduate
Medical Courses.
                                                                                F
       6. Learned counsel appearing for the writ petitioners have
vehemently submitted that it is true that earlier – prior to the introduction
of the NEET, the “Institutional Preference” in the Post Graduate
Medical Courses is held to be permissible. However, in view of the
introduction of the NEET which brings about the change to the effect
that all admissions to the Post Graduate Medical Courses should be              G
only on the basis of merit in the NEET, as per Regulation 9 of the Post
Graduate Medical Education Admission Regulations, 2000, now
“Institutional Preference” would not be permissible and the same shall
be ultra vires the Medical Council Act and the Regulations, 2000 and
contrary to the scheme of the NEET.                                             H
854            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A            6.1 It is vehemently submitted by the learned counsel for the writ
      petitioners that the purpose due to which such “Institutional Reservation”
      was held permissible by this Court no longer exists as now there exists
      50% All India Quota and the admission is also done on the basis of an
      All India Examination – NEET.
B            6.2 It is further submitted by the learned counsel for the writ
      petitioners that even the MCI Regulations for the Post Graduate
      Admissions, namely, Regulations, 2000 do not permit “Institutional
      Reservation”. It is submitted that the MCI Regulations have been held
      by this Court to be a complete Code and therefore no reservations could
C     be provided unless the same is permitted under the regulations. In
      support of the above, reliance is placed upon the decision of this Court
      in the case of State of U.P. v. Dinesh Singh Chauhan reported in
      (2016) 9 SCC 749.

            7. So far as the Delhi University and Guru Gobind Singh
D     Indraprastha University are concerned, it is submitted by the learned
      counsel for the respective petitioners that under the MCI Regulations,
      admissions are to be done only by way of two lists, i.e., (i) 50% seats
      on the basis of “All India Merit List”; and (ii) 50% seats to be filled on
      the basis of “State-wise List”. It is submitted that the admissions to
E     the State Quota seats in the aforesaid two Universities are not being
      done on unified “State-wise List” but both the universities are preparing
      two separate “University-wise” lists which is not in accordance with
      the MCI Regulations.

             7.1 It is further submitted by the learned counsel for the
F
      respective petitioners that the two universities have provided
      “Institutional Reservation” to an extent of 100% of the State Quota
      seats, i.e., the entire State quota has been reserved for their alumni
      completely denying opportunity of selection to other State candidates.
      It is submitted that the petitioners being MBBS graduates from the
G     State of NCT of Delhi are entitled to be considered under the State
      quota seats. It is submitted that at present because of the “Institutional
      Reservation”, the petitioners are not entitled to be considered under the
      State quota at all. It is submitted that therefore 100% “Institutional
      Reservation” cannot at all be permitted even if it is otherwise held to
H     be permissible.
       YATINKUMAR JASUBHAI PATEL AND OTHERS v.                              855
      STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]

       8. It is further submitted by the learned counsel for the writ       A
petitioners that in the case of Dr. Pradeep Jain (supra), “Institutional
Preference” was limited to 50% of the total number of open seats. It
is submitted that the same was held to be permissible at a time when
100% seats in the State colleges were filled up by the State. It is
submitted that in the case of AIIMS Students’ Union v. AIIMS                B
reported in (2002) 1 SCC 428, the “Institutional Reservation” was
permitted only to an extent of 25%. It is submitted that similarly in the
case of Dr. Saurabh Chaudhary (supra), the “Institutional
Preference” was permitted to the extent of 50%. It is submitted that
even if this Court holds the “Institutional Preference” permissible, in
                                                                            C
that case, the same should be limited to the 50% of the total number
of State quota seats.
        9. All these appeal/petitions are vehemently opposed by the
learned Advocates appearing on behalf of the respective States,
respective Universities and the learned counsel appearing on behalf of      D
the MCI. Learned counsel appearing on behalf of the respective
respondents have vehemently submitted that, as such, the “Institutional
Preference” is held to be permissible by this Court right from 1971. It
is submitted that the issue involved with respect to “Institutional
Preference” is now not res integra in view of the decisions of this Court
in the cases of D.N. Chanchala v. State of Mysore reported in               E
(1971) 2 SCC 293; Dr. Pradeep Jain (supra); a Constitution Bench
judgment in the case of Saurabh Chaudri (supra); and Gujarat
University v. Rajiv Gopinath Bhatt reported in (1996) 4 SCC 60.
It is submitted therefore now it will not be open for the petitioners to
again re-agitate the issue with respect to “Institutional Preference”. It   F
is submitted that the relevant regulations prescribing “Institutional
Preference” are absolutely in consonance with the law laid down by
this Court in the aforesaid decisions.
      9.1 Learned counsel appearing on behalf of the MCI, while
opposing the present appeal/petitions, has vehemently submitted that        G
admission to Post Graduate Medical Courses in the medical colleges is
done on the basis of the NEET merit and 50% seats are filled up on
merit drawn on “All India basis” and 50% seats are filled up on merit
drawn on “State-wise basis”. It is submitted that earlier the Gujarat
University used to hold examinations for Post Graduate Medical Courses      H
856            SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A     and now instead of such test by the Gujarat University, merit is to be
      determined on the basis of NEET examination results. It is submitted
      that the National Board of Examinations is entrusted with the job of
      holding NEET test for admission to Post Graduate Medical Courses.
      It is submitted that as per the information bulletin issued by the National
B     Board of Examination, 50% of the available seats are All India Quota
      seats and the remaining seats are to be filled either by the State
      Government or Colleges or Universities at the institute level using
      NEET-PG score and as per the applicable regulations and/or eligibility
      criteria, reservation policy, etc. It is submitted that for the remaining
      50% seats, it is left open for the State Government and Government
C
      Agency to make admission in such colleges, universities and institutions
      following the score obtained by the students in the NEET examination.
      It is submitted therefore that holding of common examination cannot
      lead to invalidity of “Institutional Preference” as has been held
      permissible by this Court in catena of decisions. It is further submitted
D     that after uniform entrance examination through NEET, provisions of
      Section 10D does not debar source from which admissions are to be
      made at the post graduate level.

            9.2 Making the above submissions, it is prayed to dismiss the
      present appeal/writ petitions.
E
             10. The short question which is posed for consideration of this
      Court is, whether after the introduction of the NEET Scheme, still the
      “Institutional Preference” in the Post Graduate Medical Courses would
      be permissible?
F
            10.1 At the outset, it is required to be noted that, as such, and it
      is not in dispute that such “Institutional Preference” in the Post
      Graduate Medical Courses is held to be permissible by this Court in
      catena of decisions, more particularly a three Judge bench decision of
      this Court in the case of Dr. Pradeep Jain (supra); a Constitution
G
      Bench decision of this Court in the case of Saurabh Chaudri (supra);
      and in the case of Saurabh Dwivedi v. Union of India reported in
      (2017) 7 SCC 626.

            10.2 In the case of Dr. Pradeep Jain (supra), it is observed
H     and held by this Court as under:
       YATINKUMAR JASUBHAI PATEL AND OTHERS v.                              857
      STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]

      “We are therefore of the view that so far as admissions to post-      A
      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 requirement within the State or on institutional
      preference. But having regard to broader considerations of
      equality of opportunity and institutional continuity in education     B
      which has its own importance and value, we would direct that
      though residence requirement within the State shall not be a
      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
                                                                            C
      that a student who has 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 but such reservation on the basis of institutional
      preference should not in any event exceed 50 per cent of the
      total number of open seats available for admission to the post-       D
      graduate course. This outer limit which we are fixing will also
      be subject to revision on the lower side by the Indian Medical
      Council in the same manner as directed by us in the case of
      admissions to the MBBS course. But, even in regard to
      admissions to the post-graduate course, we would direct that so       E
      far as super specialities such as neuro-surgery 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.”
                                                    [emphasis supplied]     F
       10.3 Thereafter, a five Judge Bench of this Court in the case of
Saurabh Chaudri (supra) has reiterated the scheme of “Institutional
Preference” as framed in Dr. Pradeep Jain (supra) and has approved
the “Institutional Preference” confined to 50% of the total number of
open seats. In that decision, this Court also took note of the subsequent   G
decision in the case of Dinesh Kumar (Dr.) (II) v. Motilal Nehru
Medical College, reported in (1986) 3 SCC 727 fixing the
“Institutional Preference” to the extent of 25%. However, after taking
note of the said decision, this Court has reiterated the scheme framed
in Dr. Pradeep Jain (supra) providing “Institutional Preference”            H
858             SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A     confined to 50% of the total number of open seats. In the case of
      Saurabh Dwivedi (supra), this Court has again approved the
      “Institutional Preference”. Thus, right from 1971 onwards till 2017,
      consistently this Court has approved and/or permitted the “Institutional
      Preference” in the Post Graduate Medical Courses.
B            However, it is the case on behalf of the petitioners that in view
      of the introduction of the NEET Scheme and in view of Section 10D
      of the MCI Act, by which admissions are to be given on the basis of
      the merit in the NEET, such an “Institutional Preference” would not
      be permissible. It is required to be noted that introduction of the NEET
C     has, as such, nothing to do with any preference/Institutional Preference,
      more particularly the “Institutional Preference” as approved by this Court
      time and again. The purpose and object of the introduction of the NEET
      was to conduct a uniform entrance examination for all medical
      educational institutions at the under-graduate level or post-graduate level
D     and admissions at the under-graduate level and post-graduate level are
      to be given solely on the basis of the merits and/or marks obtained in
      the NEET examination only. It is required to be noted that earlier the
      respective universities including the Gujarat University used to hold
      examination for post-graduate admission to medical courses and now
      instead of such tests by the Gujarat University/concerned universities,
E     merit is to be determined on the basis of the NEET examination results
      only and admissions are required to be given on the basis of such merits
      or marks obtained in NEET. The only obligation by virtue of
      introduction of NEET is that, once centralized admission test is
      conducted, the State, its agencies, universities and institutions cannot
F     hold any separate test for the purpose of admission to Post-Graduate
      and PG and Diploma Courses and such seats are to be filled up by the
      State agencies, universities/institutions for preparing merit list as per the
      score obtained by the applicants in NEET examination and therefore
      by introduction of the NEET, Section 10D of the MCI, Act has been
G     amended, consequently amendment to the Post-Graduate Education
      Regulations, 2000, admission to Post Graduate Courses are made
      providing for solely on the basis of the score secured by the candidates
      seeking admission based on centralized examination, i.e., NEET.
            10.4 Even while giving admissions in the State quota/institutional
H     reservation quota, still the admissions are required to be given on the
       YATINKUMAR JASUBHAI PATEL AND OTHERS v.                               859
      STATE OF GUJARAT AND OTHERS [M. R. SHAH, J.]

basis of the merits determined on the basis of the NEET examination          A
results. Under the circumstances, introduction of the NEET Scheme,
as such, has nothing to do with the “Institutional Preference”.
Therefore, the change by introduction of the NEET Scheme shall not
affect the Institutional Preference/Reservation as approved by this
Court from time to time in catena of decisions, more particularly the        B
decisions referred to hereinabove. Under the guise of introduction of
the NEET Scheme, the petitioners cannot be permitted to re-agitate
and/or re-open the issue with respect to Institutional Preference which
has been approved and settled by this Court in catena of decisions, more
particularly the decisions referred to hereinabove.
                                                                             C
       11. Now so far as the submission on behalf of the petitioners
that if the 50% seats are reserved for State quota and if institutional
preference/reservation is permitted to the extent of 50% of the total
number of open seats, in that case, not a single seat in the State quota
shall be available and therefore the percentage of Institutional             D
Preference may be reduced to the extent of 25% or so is concerned,
at the outset, it is required to be noted that as such the Institutional
Preference to the extent of 50% of the total number of open seats has
been approved by this Court in catena of decisions, more particularly
the decisions referred to hereinabove. The decision of this Court in
the case of Dinesh Kumar (Dr. )(II) (supra) permitting 25%                   E
Institutional Preference has been distinguished by a Constitution Bench
of this Court in the case of Saurabh Chaudri(supra). Therefore, once
the Institutional Preference to the extent of 50% of the total number
of open seats has held to be permissible, in that case, thereafter it will
be for the appropriate authority/State to consider how much percentage       F
seats are to be reserved for Institutional Preference/Reservation. It will
be in the realm of a policy decision and this Court cannot substitute
the same, unless it is held to be arbitrary and/or mala fide and/or not
permissible. As observed hereinabove, a five Judge Bench of this Court
in the case of Saurabh Chaudri (supra) has categorically allowed/            G
permitted/approved the Institutional Preference/Reservation in the post
graduate medical courses to the extent of 50% of the total number of
open seats.
      12. Therefore, for the reasons stated above and considering the
decisions of this Court in the cases of Dr. Pradeep Jain (supra); a          H
860             SUPREME COURT REPORTS                       [2019] 12 S.C.R.


A     Constitution Bench decision of this Court in the case of Saurabh
      Chaudri (supra); and Saurabh Dwivedi (supra), Institutional
      Preference to the extent of 50% is approved and it is observed and
      held that introduction of the NEET Scheme shall not affect such
      Institutional Preference/Reservation. Such a regulation providing 50%
B     Institutional Preference/Reservation shall not be in any way ultra vires
      to Section 10D of the MCI Act. Even otherwise, as observed
      hereinabove, even in the case of Institutional Preference/Reservation,
      the admissions in the post graduate courses are to be given on the basis
      of the merits and marks obtained in the NEET examination result only.
C           In view of the above and for the reasons stated above, all these
      appeal/writ petitions deserve to be dismissed and are accordingly
      dismissed. No costs.


      Kalpana K. Tripathy                                      Matters dismissed.
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