Punjab-Haryana High Court
Ms.Karuna vs Government Medical College And ... on 11 December, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Civil Writ Petition No.7928 of 2012 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: DECEMBER 11, 2012
Ms.Karuna
.....Petitioner
VERSUS
Government Medical College and Hospital, Sector 32,
Chandigarh & others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.Aman Arora, Advocate,
for the petitioner (in CWP No.7928 of 2012)
Mr.Harsh Aggarwal, Advocate,
for the petitioner (in CWP No.7951 of 2012)
Mr.Ashwani Talwar, Advocate,
for the petitioner (in CWP No.7969 of 2012)
Mr.Sanjay Kaushal, Senior Advocate with
Mr.Vikram Anand, Advocate,
for Chandigarh Administration.
Mr.Siddharth Sanwaria, Advocate,
for respondent No.2 (in CWP No.7928 of 2012)
Mr.Deepak Sibal, Advocate,
for the Medical Council.
****
RANJIT SINGH, J.
In these three civil writ petitions, eligibility of the petitioners for admission to MBBS Course is at issue. All the three petitioners, namely, Ms.Karuna (in CWP No.7928 of 2012), Vikram Civil Writ Petition No.7928 of 2012 (O&M) :2: Singh (in CWP No.7951 of 2012) and Sonia Sharma (in CWP No.7969 of 2012) were admitted to the MBBS Course, but had not scored 40% cut off marks in the entrance test, which is minimum prescribed percentage for admission to the MBBS Course. The petitioners have challenged the orders of cancellation of their admission and primarily would plead that this is not the eligibility condition for admission, but is a merit consideration and, hence, the admission of the petitioners could not have been cancelled as it was validly allowed. Since this common question of fact and law arises in these writ petition, these are being disposed of together through this common order. The facts are being noticed from CWP No.7928 of 2012.
The challenge in the writ petition is to the orders dated 25.4.2012 and 18.4.2012, respectively, passed by respondent Nos.1 and 3, whereby the admission of the petitioners to MBBS Course has been cancelled after 10 months of their admission. The petitioners claim to have attended the classes regularly w.e.f. 18.7.2011 till the passing of the impugned orders. As already noticed, reasons for cancelling the admission is that the petitioners did not score 40% cut off percentage in the Common Entrance Test (CET) Examination conducted by respondent No.2-University. The petitiones would refer to the provisions contained in the prospectus/brochure to urge that there is no such requirement for obtaining minimum marks in CET examination and this is not the condition of eligibility for admission to the MBBS Course.
The petitioners otherwise claim to have scored the Civil Writ Petition No.7928 of 2012 (O&M) :3: required marks in their qualifying examination to be eligible for competing in the CET examination. Apparently, the petitioners would plead that the eligibility is based on the marks obtained in the qualifying exam, whereas CET examination is meant to determine merit and not eligibility. In this background, the petitioner, Vikram Singh (in CWP No.7951 of 2012) claims to have passed 10th class examination with 80% marks. He also scored 65% marks in Physics, Chemistry and Biology in 10+2 Examination, whereas petitioner Sonia Sharma (in CWP No.7969 of 2012) has scored 76.8% marks in aggregate and 77.6% marks in Physics, Chemistry and Biology in 10+2 examination.
The common case as pleaded by all the petitioners is that Panjab University has conducted the CET Examination for admission to MBBS Course in March, 2011. The petitioners submitted their application forms and appeared in the entrance test on 22.5.2011. The result of the CET examination was declared on 3.6.2011 and the petitioners were declared successful as per the eligibility prescribed in the prospectus. The petitioners filled the forms as provided in the Centralized Admission Brochure during June, 2011. The list of the successful candidates was displayed and the petitioners attended the counselling. Upon being admitted, the petitioners deposited their fees. The admission process was closed in this manner on 18.7.2011. They have now received the impugned orders cancelling their admission on the ground that they had not obtained 40% marks in the Physics, Chemistry and Biology subjects in the competitive examinations of CET Examination, 2011 and this is as per the Civil Writ Petition No.7928 of 2012 (O&M) :4: Regulations of MCI Clause 5.5(ii). The petitioners have accordingly impugned the orders passed cancelling their admissions. Concededly, otherwise, petitioner Ms. Karuna had scored 39.16% marks in CET examination, petitioner Vikram Singh had scored 38.61% marks, whereas petitioner Sonia Sharma, who is a Physically Handicapped Category candidate could only score 24.69% marks, but were selected.
All the petitioners in these three writ petitions would refer to the eligibility criteria and the cut off percentage of MBBS Course as contained in the CET prospectus (Annexure P-1) with CWP No.7928 of 2012. The eligibility conditions and the merit conditions, according to the petitioners, are as under:-
"The eligibility criteria for admission to MBBS Course for U.T.Pool is as follows:-
The Test shall be open to all candidates who-
xxx xx xxx
b) Have passed 10+2 (12th class) examinations from
schools/Colleges recognized by the Chandigarh
Administration and situated in the UT of Chandigarh as regular students of the said Schools/Colleges. He/she should have passed in the subject of Physics, Chemistry, Biology and English individually, and must also have obtained a minimum of 50% marks in the aggregate of Physics, Chemistry and Biology at 10+2 level in the first attempt. Admission will be based on Merit in CET. However, in the case of members of the Scheduled Civil Writ Petition No.7928 of 2012 (O&M) :5: Castes, relaxation in marks not exceeding 10% shall be allowed. Or xxx xxx xxx "20. MERIT LISTS:-
xxx xxx xxx
(b) A candidates shall be included in a particular merit list on the basis of attainment of a minimum of 15% (cut off) aggregate of maximum marks in the test taken as a whole. Only in the case of candidates belonging to Scheduled Castes/Schedules Tribes, this requirement will be a minimum attainment of 10% (cut off) aggregate of maximum marks in CET test, taken as a whole".
Petitioner Ms.Karuna is a Scheduled Caste Category candidate and accordingly would plead that the qualifying marks for the petitioner in CET was 10%, but she scored 39.16% in the CET Examination. She would accordingly plead that the petitioner, therefore, was rightly admitted in the MBBS Course on 13.7.2012 and thereafter has been regularly attending classes till the admission was cancelled through the impugned order. She has accordingly challenged the same. Petitioner Sonia Sharma, who is physically handicapped candidate, accordingly pleads that her marks in the entrance examination being 24.69% were more than the eligibility criteria prescribed for such candidates, which was 15% as was given in the prospectus. Similar claim is also made by petitioner Vikram Singh to plead that the qualifying marks for General Category are 15% and 10% for Scheduled Caste, in which respect reference is Civil Writ Petition No.7928 of 2012 (O&M) :6: made to Annexure P-5.
The first petition filed in this case was 7928 of 2012, which was heard by this court on 30.4.2012. The contention raised by the counsel for the petitioner was noticed. After noticing the contention, this court permitted the petitioner to deposit the admission fees for forthcoming 1st Year MBBS Examination by staying the operation of the impugned order. This interim order was made subject to the final outcome of the writ petition, besides telling the petitioner that she shall not be allowed to plead equity on this count. CWP No.7951 of 2012 was similarly entertained and was directed to be listed alongwith CWP No.7928 of 2012 with the similar type of interim order. Similar order was then passed in CWP No.7969 of 2012 on 1.5.2012 and this writ petition was also tagged with CWP No.7928 of 2012.
Separate written replies have been filed by respondent No.1 Government Medical College, Chandigarh and by Medical Council of India (respondent No.3). The College has taken a stand that it can only admit the students as per the guidelines laid down by the Medical Council of India and that the answering respondent had no power to overlook or ignore the guidelines so issued by the MCI. The order cancelling the admission is pursuant to the directions issued by the MCI, which accordingly were complied with by the College. Thus, it would be the stand of the MCI which would be material to appreciate the challenge raised by the petitioners.
The MCI-respondent No.3 in its reply has disclosed that the petitioner in CWP No.7928 of 2012 has appeared in the CET Civil Writ Petition No.7928 of 2012 (O&M) :7: Examination in the category of Scheduled Caste and had scored 39.16% marks in Physics, Chemistry and Biology. It is stated that as per the MCI Regulations, the minimum required percentage of marks required to be scored in Entrance Examination in these three subjects is 40% for students belonging to Scheduled Caste Category before they can be considered to admission for MBBS Course.
It is pointed out that once the admissions for academic session 2011-12 were over, the MCI issued circular on 29.9.2011 to all Medical Colleges and Institutions to submit information regarding the admissions made by them in the MBBS Course in order to verify that all the admissions have been made on merits while complying with the statutory provisions. The respondent-Medical College accordingly sent this communication on 25.10.2011, which was received in the office of MCI on 2.11.2011. The MCI then sought clarification on certain issues through their communication dated 4.1.2012, which included the admissions of the petitioners despite having scored lesser marks than the minimum prescribed percentage as per the Regulations on Graduate Medical Education, 1997. The college replied to this communication conceding that the petitioners were admitted in violation of the MCI Regulations and copy of the communication dated 12.1.2012 was received in the office of MCI on 24.1.2012. Thereafter, the MCI obtained a legal opinion and the entire matter was placed before the Board of Governors, which decided that the admission of these three petitioners was contrary to Regulation 5(5)(2) of the GME Regulations and students so admitted be discharged from the course immediately. The order was Civil Writ Petition No.7928 of 2012 (O&M) :8: accordingly communicated to respondent No.1 on 18.4.2012. The college has accordingly discharged the present petitioners on 25.4.2012, which have been impugned through the present writ petitions.
The answering respondent-MCI would further plead that it is conferred with powers of forming regulations under Section 33 of the IMC Act, 1956 to carry out the purposes of the Act and the very object of IMC Act is maintenance of minimum standards of medical education in the country. In the light of the MCI Regulations so framed, the minimum eligibility requirement and mode of selection of candidates as prescribed for admission to MBBS Course is governed by Regulation 5 of GME Regulations, 1997.
A reference is made to large number of decisions regarding the process of admission and selection of students which definitely affects the standard of education. In this regard, reference is made to the Hon'ble Supreme Court Judgment in the case of State of Kerala Vs. T.P.Roshna, ((1979) 1 SCC 560. The relevant observation of the Apex Court is that power to supervise the qualifications or the eligibility standards for admission into medical institution is implicit and overall invigilation is to be done by the Medical Council to prevent sub-standard entrance qualifications for medical course. Reference is then made to the case of Medical Council of India Vs. State of Karnataka, (1998) 6 SCC 131, where it is held that the regulations of the MCI are binding and mandatory. It is further observed that all the State enactment, rules and regulations framed by the University in relation to conduct of medical courses to Civil Writ Petition No.7928 of 2012 (O&M) :9: the extent they are in consistent with the IMC Act and the Regulation made thereunder by the MCI, are void as the field of medical education is covered by the Central Legislation.
Reference is also made to Constitutional Bench Decision in the case of Dr.Preeti Srivastava Vs. State of M.P., (1999) 7 SCC 120, where controversy regarding prescription of minimum percentage of marks to be secured in competitive examination before a candidate can be selected for admission to a medical course has been set at rest. It is observed that when a common entrance examination is held for admission to postgraduate medical courses, it is important that passing marks or minimum qualifying marks are prescribed for the examination. The Supreme Court has observed that in interest of selecting suitable candidates for specialized education, it is necessary that common entrance examination is of certain standards and qualifying marks are prescribed for passing the examination. This has been held necessary to balance the competing equities and to have competent students for specialized education. Not only this, the court took notice of the fact that at the stage of admission to MBBS Course, which is the initial course in medicine, the MCI has permitted the reserved category candidates to be admitted if they have obtained qualifying marks of 35% against the qualifying marks of 45% for general category candidates. The court observed that it is basically for an expert body, like MCI to determine whether common entrance examination or lower qualifying marks can be prescribed for reserved category of candidates as against the general category of candidates and if so how much lower. Civil Writ Petition No.7928 of 2012 (O&M) : 10 :
By making reference to large number of other precedents, mainly delivered by the Apex Court, it is urged that the court has clearly laid down the principle of law that there should not be any compromise with the minimum standards laid down by the MCI in its Regulations and any relaxation of the criteria of admission which has a direct impact on the standard of medical examination would be harmful to the interest of the patients, whose lives depend upon the quality of education given to the medical profession. In this context, the justification for laying down minimum qualifying marks in the entrance test is offered.
Petitioners concededly have secured less than the prescribed percentage of marks. In this regard, reference is made to GME Regulations to say that there is no reservation of physically handicapped category and they were required to secure minimum qualifying marks as per their respective categories for vertical reservation in General, OBC, SC & ST to be eligible for being selected in accordance with merits for admission to MBBS Course. It is only by way of amendment of the Regulations that 3% seats in the medical course and the minimum marks to be secured in CET for students claiming admission was fixed at 45% in the subjects of Physics, Chemistry and Biology. The claim of the petitioners accordingly is contested and the cancellation of their admission is justified on this count.
During the course of hearing, it was noticed that some of the private unaided medical colleges running the MBBS Course have been making admissions on the basis of qualifying examination, i.e., Civil Writ Petition No.7928 of 2012 (O&M) : 11 : 10+2 class examination. This was being done when no person who had qualified in the entrance test is available for admission and such seats are then offered to students on the basis of their marks or merit in qualifying examination. It was pointed out that in the case of NRI, it is not essential to pass the entrance test examination and the admission to this quota is being made without such candidates appearing in the entrance test. The MCI was accordingly directed to explain this aspect.
In the affidavit filed, it is stated that the MCI Regulations provide that no admission can be made of a candidate who has not appeared in the entrance examination and has not qualified by securing the minimum marks prescribed in this regard. The counsel appearing for the MCI has even gone to the extent of stating that MCI would take action to cancel all such admissions, which have been made in violation of this requirement of the Regulations.
The counsel appearing for the petitioners in these cases have also made reference to number of precedents, which may also call for notice and consideration.
It is urged that in Deepa Thomas and others Versus Medical Council of India and others, (2012) 3 Supreme Court Cases 430, the Hon'ble Supreme Court had allowed the admission of irregularly admitted students to continue, where such students were admitted to MBBS Course due to mistake in eligibility criteria as was mentioned in the prospectus. I have considered and perused the judgment in Deepa Thomas's case (supra) rather minutely. What has primarily weighed with the Hon'ble Court is the duration and the Civil Writ Petition No.7928 of 2012 (O&M) : 12 : extent of study carried out in this case. The petitioners in the said case were able to continue their study and had completed 4½ years of study on the strength of interim order passed by the Court and these were the special facts and circumstances, which gave rise to extra-ordinary situation for which the said petitioners were allowed to complete their MBBS Course. It can also be noticed that irregular admissions in this case were made by respondent college in violation of the MCI Regulations due to mistake or omission in the prospectus issued by the respondent college. The college was directed to surrender from the management quota the number of seats equal to the number of such irregular admissions.
This extra-ordinary facts situation which has prompted the Hon'ble Supreme Court to adopt this extra-ordinary measure does not arise in the facts and circumstances of this case. Here at the first available opportunity, the objection has been raised by the MCI against the admissions so made to be in violation of the MCI Regulations. The college has admitted its mistake by conceding that the petitioners herein have been wrongly admitted. It was not on account of any provision in the prospectus but it was a sheer mistake on the part of the college that the petitioners could get admission. The fact situation in the present cases may not, thus, apply to the facts of present case and the course as adopted by the Hon'ble Supreme Court in Deepa Thomas's case (supra) may not be possible or permissible in the present cases.
It is also seen that the order by the Hon'ble Supreme Court was passed in the light of peculiar facts in the said case by Civil Writ Petition No.7928 of 2012 (O&M) : 13 : invoking jurisdiction under Article 142 of the Constitution, which power may not be available with this Court.
Reference is made to the case of Chowdhury Navin Hemabhai and others Versus State of Gujarat and others, (2011) 3 Supreme Court Cases 617. This was a case where State Government framed admission rules requiring a lower qualification than what was framed by the MCI Regulations. The said rule was held illegal by the Hon'ble Supreme Court. The order directing discharge of the appellants before the court was held valid, but still relief was granted to the appellants in the peculiar facts and circumstances of the case on the ground that fault was that of rule making authority. The court, however, specifically directed that this case be not treated as precedent. It is, thus, noticed that in this case also the court granted the relief only because the rule made by the State Government had led to this situation which is not so in the present cases. Moreover, it is not to be treated as precedent.
Sunil Oraon (Minor) through Guardian and others Versus CBSE and others, (2006) 13 Supreme Court Cases 673, referred to before me, rather would stand in support of the proposition that mere fact that ultimate victims in such cases would be the innocent students is not a good ground to allow a student to appear in the examination. The court rather deprecated the practice of passing an interim order by the High Court permitting the students to appear in CBSE Examination as an aberration and subversive of academic discipline. The students suffering in this manner, however, were only given liberty to seek remedy against the school which was Civil Writ Petition No.7928 of 2012 (O&M) : 14 : at fault. That is rather a proper course to be adopted in such like situations.
The case of Ashok Chand Singhvi Versus University of Jodhpur and others, AIR 1989 (SC) 823, pressed into service was earlier discussed by this court in detail alongwith some other such or similar precedents while deciding Civil Writ Petition No.9668 of 2012 (Rahul Kumar Versus Deenbandhu Chhotu Ram University of Science & Technology, Sonepat and others), decided on 17.11.2012. In this regard, it is observed as under:-
"The challenge in the case of Ashok Chand Singhvi's case (supra) was to the order passed by the High Court, dismissing the writ petition of the appellant therein. Before the High Court, the petitioner had challenged the order of Dean of Faculty of Engineering of Jodhpur University, putting the admission of the appellant in B.E. Degree Course in abeyance till further orders.
It would be appropriate to notice the background in which this issue arose before the Hon'ble Supreme Court. The appellant therein was a Diploma Holder and was serving in the M.S.M. Engineering College, Jodhpur, as Administrator/Instructor. On his request, he was allowed study leave. Relying on the resolution passed by the Syndicate that certain teachers of the University were admitted to B.E. Degree Course, the appellant had submitted his application, which was forwarded by the Professor and Head of the Mechanical and Engineering Department to the Vice Chancellor. After considering the Civil Writ Petition No.7928 of 2012 (O&M) : 15 : facts, the Vice Chancellor accepted the recommendation made by the Dean and granted admission to the appellant in B.E. IInd Year Engineering Course. This order was put in abeyance until further orders. Aggrieved against this, the appellant in this case had approached the High Court but his writ petition was dismissed. The Hon'ble Supreme Court has noticed that there may be a force in the contention raised by the respondent that the appellant could not be admitted and his admission was illegal, but went on to observe that when all facts were before the University and nothing was suppressed by the appellant, it would not be proper to penalise the appellant for no fault of his. It is further observed that admission of the appellant was not made through inadvertence or mistake but after considering even all the objections to the same as raised by the Officer Incharge, Admission, in his note. The appellant had been communicated with the decision of the Dean as approved by the Vice Chancellor, whereafter he deposited the requisite fee.
As it can be seen, the issue in the case of Ashok Chand Singhvi (Supra) was not concerning the eligibility or ineligibility of the appellant for admission. The admission was being referred to as illegal and the Hon'ble Supreme Court did not find any inadvertence or mistake on the part of the University in granting admission to the appellant therein. Otherwise, the Court Civil Writ Petition No.7928 of 2012 (O&M) : 16 : found force in the contention of the counsel for the respondent-University. The stand of the University that appellant was granted admission through mistake did not appeal the Hon'ble Supreme Court and this contention was not accepted. This ratio of law was laid down in peculiar facts that Dean and the Vice Chancellor had allowed the admission after due consideration, taking into account the objections raised. No doubt, the Hon'ble Supreme Court has observed that assuming that the appellant was admitting through mistake but he was not at fault and it would be difficult to sustain the order withholding his admission. The ratio emerging from this case, thus, would not at all apply to the facts of the present case."
Rajendra Prasad Mathur Versus Karnataka University and another, 1986 (Sup) SCC 740 was again a case where the court had granted relief on the ground that the petitioner therein was pursuing his course for 4 years, though was not eligible for admission. This judgment again cannot be taken as a precedent to hold that even ineligible person can be allowed to continue even if such aspect of ineligibility is noticed at the very beginning of the course.
The counsel have also made reference to some of the judgments to plead sanctity of the provisions made in the prospectus. In this regard, reference is made to the case of Amardeep Singh Sahota Versus The State of Punjab etc., (1993-2) Vol.CIV Punjab Civil Writ Petition No.7928 of 2012 (O&M) : 17 : Law Reporter 212. In this case, the court has observed that the notification issued goes contrary to the policy which was laid down for admission in an earlier notification on the basis of which the prospectus was issued and the students had appeared for the test on the basis of the policy laid down in the prospectus. It is held that the conditions contained in the prospectus certainly cannot be changed. I do not see that there has been any change in the conditions in the prospectus so far as the case of the petitioners are concerned. Here the petitioners concededly were admitted to the MBBS Course by ignoring the provisions of the MCI Regulations, which have otherwise been held to be statutory and binding in nature and violation thereof can not be accepted. For similar reasons, the judgment in the case of Ravdeep Kaur Vs. The State of Punjab, ILR (1985) 1 Pb.& Hry.343 may be distinguishable.
The counsel for respondent-MCI, on the other hand, has made reference to State of Punjab Vs. Dayanand Medical College and Hospital and others, (2001) 8 Supreme Court Cases 664. This judgment appears to be very near to the facts of the present case. This case related to admission to Medical Colleges and Postgraduate Courses. The issue was for obtaining minimum qualifying marks for such admission. It is observed that sanctity must be maintained in this regard. It is noticed that such marks prescribed by MCI in terms of Entry 66 of List 1 Seventh Sch.of Constitution cannot be unilaterally diluted by the Government or the University. It is held by the Hon'ble Supreme Court that in case of any difficulty, the Government ought to approach the Medical Council for making Civil Writ Petition No.7928 of 2012 (O&M) : 18 : appropriate changes. It is further observed that provision in the notification issued by the State lowering minimum qualifying marks to 40% for specialty subjects and doing away with them altogether for basic subjects contrary to Regulation 9 of the Medical Council Regulations, which prescribe 50% minimum marks, was invalid. The relevant observations of the Hon'ble Supreme Court in this regard can be noted here for understanding and assimilation:-
"18. What we have now to see is whether the action taken by the appellants is consistent with the prescription made by the Medical Council of India to the extent of obtaining 50% marks in the entrance examination and on that basis operate their rosters. If they do so and if the candidates, who have secured 50% marks, would be admitted. No interference is called for in the matter. If, however, any of the students has secured less than 50% marks that admission alone will have to be cancelled and appropriate directions issued to select as against it another candidate belonging to the reserved category if there is a reserved category candidate who has secured such marks, and if no reserved category candidate is available, he must then be selected from the general category.
19. We, therefore, find that the prescription made by the appellants reducing the minimum marks to 40% in the entrance examination for considering the eligibility of the candidates for admission to postgraduate medical Civil Writ Petition No.7928 of 2012 (O&M) : 19 : courses and in respect of the basic subjects fixing no minimum standard is plainly in contravention of the Regulations framed by the Medical Council of India and that part of the notification will have to be ignored. If that is done and if the Regulations framed by the Medical Council of India are applied in toto, appropriate working will have to be made by the appellants as indicated supra and the same will have to be given effect to."
The clear proposition of law would emerge from this judgment to the effect that the State Government cannot prescribe any condition, which is contrary to the Regulations of the MCI.
Accordingly, the line of submissions as pursued by the counsel for the petitioners that even if the admission was granted on the ground of the petitioners being ineligible, the same cannot be disturbed can not be accepted as a good ground to interfere in the present cases.
In addition, the counsel appearing for petitioner Sonia Sharma in CWP No.7969 of 2012 has raised an additional plea to urge that she was rightly admitted even though she may not have minimum qualifying marks as provided in the MCI Regulations. This plea is raised by reading and interpreting Rule 5 of the MCI Regulations, which is reproduced as under:-
"5.Selection of Students: The selection of students to medical college shall be based solely on merit of the candidate and for determination of the merit, the following criteria be adopted uniformly throughout the country; Civil Writ Petition No.7928 of 2012 (O&M) : 20 : (1) In states, having only one Medical College and one university board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration; (2) In states, having more than one university/board/ examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examination conducted by different agencies;
(3) Where there are more than one college in a state and only one university/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges;
(4) A competitive entrance examination is absolutely necessary in the cases of Institutions of All India character;
5. Procedure for selection to MBBS course shall be as follows:-
(i) In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% Civil Writ Petition No.7928 of 2012 (O&M) : 21 : marks taken together in Physics, Chemistry, and Biology at the qualifying examination as mentioned in clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above;
(ii) in case of admission on the basis of competitive entrance examination under Clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in Clause (2) of Regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. In respect of candidates belonging to Scheduled Caste, Scheduled Tribes or other Backward Classes the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above.
Provided that a candidate who has appeared in the qualifying examination the result of which has not been Civil Writ Petition No.7928 of 2012 (O&M) : 22 : declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course, he shall not be admitted to that course until he fulfils the eligibility criteria under regulation 4."
The following has been added before the proviso to Clause 5(5)(ii) in terms of notification published on 25.03.2009 and the same is annexed as Annexure-VII) Provided that the eligibility criteria for admission to persons with locomotory disability of lower limbs in terms of Clause 4(3) above- will be a minimum of 45% marks istead of 50% taken together in qualifying examination and competitive entrance examination for admission in MBBS Course."
The counsel for the petitioner would urge that reading of this regulation would clearly show that requirement is for a candidate to pass in the subjects of Physics, Chemistry, Biology and English individually and to obtain 50% marks taken together in Physics, Chemistry, Biology at the qualifying examination. In addition, such a candidate must have come in merit list prepared as a result of such entrance examination by securing not less 50% marks in Physics, Chemistry and Biology taken together. In respect of candidates belonging to Scheduled Caste, Scheduled Tribes or other Backward Classes, the marks obtained in Physics, Chemistry, Biology taken together in qualifying examination and competitive entrance examination is to be 40% instead of 50%. As per the proviso, the Civil Writ Petition No.7928 of 2012 (O&M) : 23 : eligibility criteria for admission to a person with locomotors disability of lower limbs will be minimum of 45% marks instead of 50% taken together in qualifying examination and competitive examination for admission in MBBS Course. The counsel would read this proviso to convey that candidate belonging to physically handicapped category is required to obtain 45% marks together in qualifying examination and competitive entrance examination, which eligibility, the petitioner would satisfy.
In my view, the counsel is clearly misreading this proviso. This proviso is to be read with the main clause laying down the criteria for eligibility. Once this provision is read with the main clause, it would clearly show that all candidates have to take admission on the basis of competitive entrance examination and they must pass in the subjects of Physics, Chemistry, Biology and English individually and they must also obtain minimum 50% marks taken together in Physics, Chemistry, Biology at the qualifying examination. The word `together' is not to be read with qualifying examination and competitive entrance examination, but is to be read with the marks which candidate is required to obtain in Physics, Chemistry and Biology . This is made so very clear even in Clause (ii) reproduced above where it is clearly laid down that in respect of candidates belonging to Scheduled Caste, Scheduled Tribe and other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as in case of general category candidates. The word 'together' here clearly means that 40% marks Civil Writ Petition No.7928 of 2012 (O&M) : 24 : in aggregate are to be obtained in three subjects, i.e., Physics, Chemistry, Biology separately in qualifying examination and the competitive entrance examination. The proviso in respect of physically handicapped category only prescribed 45% marks instead of 50% marks in case of general category candidates and 40% as laid down in the case of Scheduled Caste, Scheduled Tribe and other Backward Class category candidates. I cannot, thus, subscribe to the interpretation sought to be applied by the counsel for the petitioner to this proviso or to the provisions as such.
Though the petitioner in CWP No.7969 of 2012 has referred to number of judgments regarding rules of construction of statutes and interpretation of statutes, but here the issue would be the manner in which proviso has to be read. Accordingly, the judgments in the cases of Udayan Chinubhai Versus R.C.Bali, AIR 1977 Supreme Court 2319 and Jagir Singh Versus Ranbir Singh and another, (1979) 1 Supreme Court Cases 560 may not have much relevance. Here the case relates to the interpretation of proviso.
The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein, which, but for the proviso would be within the purview of the enactment. When one finds a proviso to a Section, the natural presumption is that, but for the proviso, enacting part of the Section would have included the subject matter of the proviso. Reference here may be made to Mullins Vs. Treasurer of Survey,1880 (5) QBD 170. This was referred to in the cases of Shah Bhojraj Kuverji Oil Mills and Civil Writ Petition No.7928 of 2012 (O&M) : 25 : Ginning Factory Vs. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596. Proviso is a qualification of the preceding enactment, which is expressed in terms too general to be quite accurate. Generally proviso is added to qualify or create an exception to what is contained in the enactment. A proviso is not to be interpreted as stating a general view. If the language of the enacted part of the statute does not contain the provisions, which are said to occur in the proviso, one can not derive these provisions by implication from the proviso. (See West Durbi Union Vs. Metropolitan Life Insurance Company, (1897) AC 647 (HL). Normally a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it is enacted as a proviso and to no other. If an earlier clause is followed by later, which destroys altogether the obligation created by the earlier clause, then the later clause is to be rejected as repugnant and the earlier clause only would prevail. The ordinary and proper function of a proviso coming after general enactment is to limit the general enactment in certain instances. A proviso to a Section can not be used to import into the enacted part, something which is not there but where the enacted part is susceptible to several possible meanings, it may be controlled by the proviso. (See Jennings Vs. Kelly, (1940) A.C. 206. The 'true' principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of enacting clause, saving clause and proviso, taken and construed together is to prevail. A proviso should not be interpreted so as to have greater effect than strict construction of the proviso is necessary.
Civil Writ Petition No.7928 of 2012 (O&M) : 26 :
Construing the proviso in the light of the abovesaid law, it can be taken that this proviso is an exception to the main provision and cannot cover a different situation and cannot be interpreted to have greater effect on the main provision as such. Thus, the proviso cannot travel beyond the main rule.
Reference can also be made to State of Andhra Pradesh and another Versus Lavu Narendranath and others etc., 1971(1) Supreme Court Cases 607, where the right of the Government to make selection out of large number of candidates by prescribing test of their own was held legal and justified. In Dr.Indu Kant Versus State of U.P. And others, 1993 Supp.(2) Supreme Court Cases 71, the Court was dealing with the cut off marks of 50% for general category candidates and 40% for SC/ST candidates in entrance examination which was declared valid by the Supreme Court. It is further held that the candidates, who could not secure admission having failed to get minimum percentage of marks in the entrance examination in a year, cannot be directed to be admitted in a subsequent year against vacant seats. Thus, obtaining minimum qualifying marks was taken as eligibility which cannot be ignored.
In Shri Chander Chinar Bada Akhara Udasin Society and others Versus State of J&K and others, (1996) 5 Supreme Court Cases 732, the court has held that marks obtained in higher secondary examination is not a proper criteria and common entrance examination is the best method. Even in Ravindra Kumar Rai Versus State of Maharashtra and others, 1998(3) Supreme Court Civil Writ Petition No.7928 of 2012 (O&M) : 27 : Cases 183, the Supreme Court has held that admission to the Medical College in the State has to be on the basis of common entrance examination, where in a State there are more than one Board conducting qualifying examination and several Medical Colleges are affiliated to various Universities.
In view of the position as it would emerge from the foregoing law laid down by the Hon'ble Supreme Court, it is to be seen whether the admission could validly be made of the candidates who have not secured even minimum qualifying marks in the CET Examination. The submission that the competitive examination is only meant to determine merit and there is no requirement of obtaining minimum qualifying marks obviously cannot be accepted. If that is accepted, it would be in violation of the law laid down by the Hon'ble Supreme Court. On more than one occasion, the Hon'ble Supreme Court has held that MCI Regulations are statutory and are of binding and mandatory nature. The rules or regulations framed by any University or College for conduct of medical course to the extent these are in consistent with the IMC Act and the Regulations would be void and have to be so termed. It is observed that the field of medical education is covered by the Central Legislation. The precedents in this regard are numerous and have been multiplied during the course of arguments by the counsel appearing for the MCI. The submission by the learned counsel for the petitioners that competitive entrance examination would not be an eligibility criteria can certainly not be accepted and the MCI Regulations in this regard are very clear. Their nature and scope being fully settled, it would be Civil Writ Petition No.7928 of 2012 (O&M) : 28 : too late to urge that this is not an eligibility criteria. To admit a student who has not attained the minimum qualifying marks in the entrance examination would be in violation of the MCI Regulations and, hence, the cancellation of the admission of the petitioners is fully justified in law and is supported by various judgments of the Hon'ble Supreme Court.
Accordingly, I do not see any merit in these writ petitions and would dismiss the petitions. The parties are left to bear their respective costs.
December 11, 2012 ( RANJIT SINGH ) ramesh JUDGE