Full Judgment Text
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CASE NO.:
Appeal (civil) 1807 of 2003
PETITIONER:
HARISH VERMA AND ORS.
RESPONDENT:
AJAY SRIVASTAVA AND ANR.
DATE OF JUDGMENT: 16/09/2003
BENCH:
R.C. LAHOTI & ASHOK BHAN
JUDGMENT:
JUDGMENT
2003 Supp(3) SCR 833
The Judgment of the Court was delivered by
R.C. LAHOTI, J. : Leave granted in SLP (C) Nos. 4965/03 and 14367-91/03.
In exercise of the powers conferred by Section 33 read with Section 20 of
the Indian Medical Council Act, 1956, the Medical Council of India has,
with the previous sanction of the Central Government, made the regulations
called "the Post Graduate Medical Education Regulations 2000" (hereinafter
the Regulations, for short). Regulation 9, relevant for our purpose,
provides as under :
9. SELECTION OF POSTGRADUATE STUDENTS
(1) Students for postgraduate medical courses shall be selected
strictly on the basis of their academic merit.
(2) For determining the academic merit, the university/institution may
adopt any one of the following procedures both for degree and diploma
courses :
(i) On the basis of merit as determined by a competitive test conducted
by the State Government or by the Competent authority appointed by the
State Government or by the university/group of universities in the same
State; or
(ii) On the basis of merit as determined by a centralized competitive test
held at the national level; or
(iii) On the basis of the individual cumulative performance at the first,
second and third MBBS examinations, if such examinations have been passed
from the same university; or
Provided that wherever entrance test for postgraduate admission is held by
a state government or a university or any other authorized examining body,
the minimum percentage of marks for eligibility for admission to
postgraduate medical course shall be 50 per cent for general category
candidates and 40 per cent for the candidates belonging to Scheduled
Castes, Scheduled Tribes and Other Backward Classes :
Provided further that in non-government institutions fifty percent of the
total seats shall be filled by the competent authority and the remaining
fifty percent by the management of the institution on the basis of merit.
(emphasis supplied)
The first proviso to Regulation 9 in its present form was introduced with
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effect from 20.9.2001. Earlier the first proviso required the minimum
percentage of marks for eligibility as 50 per cent for all the categories
of candidates.
In the first week of March 2002 the University of Rajasthan published a
notification announcing the holding of pre-PG examination on 21.4.2002. The
minimum qualifying marks were notified as 50 per cent for general category
candidates and 40 per cent for SC/ST/OBC candidates consistently with the
first proviso to Regulation 9. The examination was held on 21.4.2002. The
result of the examination was declared on the next day. On 29.4.2002
several in-service doctors (i.e the graduate doctors who were serving under
the State of Rajasthan) filed a writ petition laying challenge to the
constitutional validity of the first proviso to Regulation 9 and seeking
its being declared ultra vires in its applicability to in-service
candidates. In the alternative, it was prayed that the first proviso
abovesaid be declared as inapplicable insofar the seats meant for in-
service candidates in postgraduate medical courses are concerned.
Consistently with such declaration it was prayed that the result be
declared afresh and that the in-service candidates be declared to have
qualified for entrance in PG degree/ diploma courses without insisting on
the prescribed minimum qualifying marks. Several such writ petitions were
filed. It is significant to note that the writ-petitioners before the High
Court were all such doctors who were serving in the State services and who
had participated in the pre-PG examination but had failed in securing the
minimum qualifying marks as prescribed by the first proviso to Regulation 9
and the notification dated 2nd March, 2002. The High Court issued rule nisi
and also passed an interim order to the effect that the unfilled seats in
the in-service category shall be kept vacant during the pendency of the
proceedings.
The State of Rajasthan, the University of Rajasthan and the Medical Council
of India were all impleaded as parties. In their respective counter-
affidavits they supported the validity of Regulation 9 along with its
provisos and submitted that the High Court ought not to modify or make
departure from the statutory regulations framed by the Medical Council of
India and the standards laid down by it in the interest of medical
profession.
A learned Single Judge of the High Court who heard a batch of 44 similar
writ petitions directed all the petitions to be dismissed upholding the
validity of the impugned Regulation.
The writ-petitioners, being aggrieved by the judgment of the learned Single
Judge, preferred several intra-court appeals under Section 18 of the
Rajasthan High Court Ordinance. On 28.8.2002 the Division Bench framed the
following questions of law and opining the questions to be of considerable
importance directed all the appeals to be placed for hearing before a Full
Bench :
1. Whether any reserved quota could not be separately specified for in-
service candidates; merely because such in-service category is not
mentioned in Article 15(4) of the Constitution of India?
2. Whether the prescribing of a separate quota for in-service candidates
withstands the test of reasonable classification under Article 14 of the
Constitution of India?
On 5.2.2003, vide the judgment impugned herein, the High Court has allowed
the appeals and set aside the judgment of the learned Single Judge. During
the course of its judgment the Full Bench has held that the Regulations
framed by the Medical Council of India have only a persuasive value and do
not have any binding force in so far as the State Government is concerned.
The State has the power to prescribe a lower percentage of marks for in-
service candidates. Regulation 9 does not apply to in-service candidates.
However, the Full Bench held that as the minimum qualifying marks for in-
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service candidates could not have a wide disparity with the marks
prescribed for general category candidates. It directed that it shall be
open to the State Government to go ahead with the admission of in-service
candidates to the postgraduate courses on the basis of such percentage of
qualifying marks which may be lower than 50 per cent but not below 40 per
cent, which is the minimum eligibility percentage prescribed for the
reserved category candidates.
These are the appeals filed by special leave by the general category
candidates and the Medical Council of India.
On 24.2.2003 leave to appeal was granted under Article 136 of the
Constitution. The appellants had sought staying of the operation of the
judgment of the Full Bench of the High Court being stayed. Prayer for
interim relief being allowed ex-parte was refused by the Court and notice
was directed to be issued to the respondents. On 4.4.2003 counselling was
held and 126 seats were filled. 75 students from the in-service category
who had secured marks between 40 and 50 per cent participated in the
counseling and have been allotted seats, subject to an undertaking filed by
each one of them that the judgment of this Court whenever pronounced shall
be binding on them. During the pendency of these appeals the process of
admission against PG seats for the year 2003 has been completed. 80 in-
service candidates have been allotted seats, out of whom only 18 candidates
have cleared the 50 per cent eligibility criteria. The remaining 62
candidates are ineligible as per the first proviso to Regulation 9. The
counseling for 2003 candidates has been held on 28/29.8.2003.
When the matter came up for hearing on 19.8.2003 it was brought to the
notice of the Court that various candidates who have been declared
successful at the pre-PG examination in accordance with the judgment of the
Full Bench of the High Court and who may be dislodged in the event of the
appeals being allowed were not noticed. The Secretary, Medical and Health
Department, State of Rajasthan, was directed to notify on the Notice Board
of all the medical colleges in the State of Rajasthan the factum of filing
of these appeals and of their coming up for hearing, putting the candidates
on notice that they could enter appearance and participate in the hearing,
if so advised, so as to defend themselves. That compliance has been done.
However, none of such in-service candidates have chosen to appear.
We have heard Ms. Indu Malhotra, the learned counsel for the appellants
(general category non-service doctors), Mr. Salman Khursheed, the learned
counsel for the private respondents who were the writ-petitioners in the
High Court, Mr. Ranji Thomas, the learned counsel for the State of
Rajasthan, Mr. Maninder Singh, the learned counsel for the Medical Council
of India, and all other learned counsel appearing for the parties.
Ms. Indu Malhotra, the learned counsel for the appellants (private
respondents in the High Court) has carried the Court through the judgment
of the Full Bench of the High Court to demonstrate the gross error of law
unwittingly committed by the High Court in ignoring the majority view of
the constitution Bench decision of this Court in Dr. Preeti Srivastava and
Anr. v. State of M.P. & Ors., [1999] 7 SCC 120. Instead, the learned
counsel submitted, the Full Bench has quoted a few passages from the
minority opinion from Dr. Preeti Srivastava’s case (supra) which is at
variance with the majority opinion, and therefore, the judgment stands
vitiated. It was further submitted that a recent decision of this Court in
The State of Madhya Pradesh & Ors. v. Gopal D. Tirthani & Ors., JT (2003) 6
SC 204 clinches the issue and applies squarely to the facts of the present
case, and therefore also the impugned judgment has to be reversed. We find
merit in the submissions so made. It will be useful to extract and
reproduce the law laid down by the majority consisting of four learned
Judges speaking through Sujata Manohar, J. in Dr. Preeti Srivastava ’s case
(supra). It was held
(i) the Indian Medical Council Act, 1956, especially the provisions
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contained in Sections 16 to 20 of the Act empower the Council to prescribe
the minimum standards of medical education required for granting recognized
medical qualifications other than post-graduate medical qualifications by
the Universities or medical institutions, as also to prescribe the minimum
standards of postgraduate medical education. The Universities must
necessarily be guided by the standards prescribed under Section 20(1) if
their degrees or diplomas are to be recognized under the Medical Council of
India Act. An earlier decision of this Court in Ajay Kumar Singh andOrs. v.
State of Bihar and Ors., [1994] 4 SCC 401 taking the view that the
standards of postgraduate medical education prescribed by the Medical
Council of India are merely directory and the Universities are not bound to
comply with the standards so prescribed was overruled (para 55);
(ii) The Medical Council Regulations have statutory force and are
mandatory. The Act contemplates the Medical Council of India having been
set up as an expert body to control the minimum standards of medical
education and to regulate their observance. It has implicit power to
supervise the qualifications or eligibility standards for admission to
medical institutions. The Medical Council has to keep overall vigilance to
prevent sub-standard entrance qualifications for medical courses. These
observations apply equally to postgraduate medical courses (para 57);
(iii) A common Entrance Examination envisaged under the Regulation framed
by the Medical Council of India for postgraduate medical education requires
the fixing of minimum qualifying marks for passing the examination since it
is not a mere screening test;
(iv) Whether any lower minimum qualifying marks (than the one prescribed by
the first proviso to Regulation 9) can be prescribed at the postgraduate
level of medical education is a question which must be decided by the
Medical Council of India since it affects the standards of postgraduate
medical education. Prescribing the percentage of 20 per cent for the
reserved category and 45 per cent for the general category is not
permissible; the same being unreasonable at the postgraduate level and
contrary to the public interest.
However, the Full Bench of the High Court has referred to several
observations made vide para 77 and para 116 of Dr. Preeti Srivastava’s case
(supra) wherein the dissenting opinion has disagreed with the conclusions
reached by the majority that the fixing of minimum qualifying marks for
passing the entrance test for postgraduate course is concerned with the
standards of postgraduate medical education. Vide para 116, the dissenting
opinion has held that the Regulation and guidelines given by the Medical
Council of India are persuasive and do not have any binding force, which
are to be kept in view only broadly and that it is permissible for the
State authorities to short-list the eligible and qualified MBBS doctors for
being considered for admissions to postgraduate medical courses in the
institutions of the State, and for the purpose of such short-Using full
pleasure is available to the State authorities to exercise legislative or
executive power. With respect to the learned Judges constituting the Full
Bench of the High Court, we have to say that they could not have relied on
the dissenting opinion of one learned judge, overlooking the majority
opinion which is the law laid down by the Constitution Bench and has the
binding force.
The issue arising for decision before the Full Bench of Rajasthan High
Court, arose for decisions in a very similar background in The State of
Madhya Pradesh & Ors. v. Gopal D. Tirthani & Ors., JT (2003) 6 SC 204.
Dealing with the question of why a common entrance test is necessary and
why an exception cannot be carved out in favour of in-service candidates by
lowering the standards below the ones permitted by the Medical Council of
India, this Court, following Dr. Preeti Srivastava ’s case, opined as under
:
"A pass mark is not a guarantee of excellence. There is a great deal of
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difference between a person who qualifies with the minimum marks and a
person who qualifies with high Marks. If excellence is to be promoted at
the postgraduate level, the candidates qualifying should be able to secure
goods marks while qualifying. Attaining minimum qualifying marks has direct
relation with the standards of education. Prescription of qualifying marks
is for assessment of the calibre of students chosen for admission. If the
students are of a high calibre, training programmes can be suitably moulded
so that they can receive the maximum benefit out of a high level of
teaching. If the calibre of the students is poor or they are unable to
follow the instructions being imparted, the standard of teaching
necessarily has to be lowered to make them understand the course which they
have undertaken; and it may not be possible to reach the levels of
education and training which can be attained with a bright group. The
assemblage of students in a particular class should be within a reasonable
range of variable calibre and intelligence, else the students will not be
able to move along with each other as a common class. Hence the need for a
common entrance test and minimum qualifying marks as determined by experts
in the field of medical education."
It was held that the selection of students who had secured marks less than
the minimum marks prescribed by the Medical Council of India’s Regulation
on account of reduction in the minimum marks in the entrance examination
made by the State Government, was liable to be struck down and ignored. If
the State has a case for making a departure from the standards laid down by
the Medical Council of India or for carving out of exception in favour of
any identifiable class of persons, then it is for the State to represent to
the Central Government and/or the Medical Council of India and make out a
case of Justification before the Medical Council of India. "The in-service
candidates may have been away from academics and theories because of being
in service. Still, they need to be assessed as eligible for entrance in
P.G. For taking up such examination, they must either keep updating
themselves regularly or concentrate on studies preparatory to entrance
examinations but without sacrificing or compromising with their obligations
to the people whom they are meant to serve on account of being in State
services."
Out of the several conclusions summed up by the Court the one relevant for
the purpose of the present case is - "There can be only one common entrance
test for determining eligibility for post graduation or in-serivce
candidates and those not in service. The requirement of minimum qualifying
marks cannot be lowered or relaxed contrary to the Medical Council of India
regulations framed in this behalf. The court has observed that subject to
securing the minimum qualifying marks if the in-service candidates
formulate a class by themselves for whom a separate channel of entry has
been carved out then within the group there may be scope for assigning
wieghtage for rural service rendered for the purpose of determining order
of merit inter se, but such weightage cannot be utilized for the purpose of
relaxing the condition as to minimum qualifying marks as prescribed by the
Medical Council of India.
The decision of the Full Bench of the High Court, having been rendered in
ignorance of the binding law laid down by the majority opinion in the
Constitution Bench decision of this Court in Dr. Preeti Srivastava and
Anr., (supra) and also being inconsistent with the decision of this Court
in the case of Gopal D. Tirthani & Ors. (supra), is liable to be set aside.
The appeal is allowed. The impugned judgment of the Full Bench of the High
Court of Rajasthan is set aside and the judgment given by the learned
single Judge is restored.
As a consequence, the admissions given to such of the in-service candidates
who have secured marks less than the minimum prescribed by Regulation 9
framed by the Medical Council of India are struck down and set aside. The
counselling shall have to be done afresh to the extent necessary. We are
conscious of the fact that there would be some delay in commencement of
post-graduation studies and to some extent the 2002 and 2003 batches would
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overlap. However, that is a situation which cannot be avoided. It is an
inevitable consequence for which the successful candidates for the year
2002 and 2003, i.e. those who will be held entitled for admission in post-
graduation courses of studies consequent upon this judgment, cannot be made
to suffer for no fault of theirs. It will be for the State of Rajasthan, if
necessary then in consultation with the Medical Council of India, to sort
out the difficulties and to run the regular course of the studies.
No order as to the costs.