Orissa High Court
Ashok Kumar Mishra vs State Of M.P. & Ors on 14 March, 2012
V.GOPALA GOWDA, CJ & B.N.MAHAPATRA, J.
W.A. NO.555 OF 2011 (Dt.14.03.2012)
ASHOK KUMAR MISHRA .........Appellant.
.Vrs.
STATE OF ORISSA & ORS. .........Respondents.
For Appellant - M/s. Dr. A.K.Mohapatra, Alok Ku. Mohapatra, N.C.Rout, S.K.Padhi, S.K.Mishra & S.Swain.
For Respondents- Mr. R.K.Mohapatra, Govt. Advocate (for Res. No.1 & 4) M/s. S.palit, A.K.Mahana, A.Mishra & D.Biswal, (for Res. No.2 & 5) M/s. R.C.Mohanty, K.C.Swain & S.Mohanty, (for Res. No.3).
V. GOPALA GOWDA,C.J. The unsuccessful petitioner in the writ petition bearing W.P.(C) No. 18599 of 2011 being aggrieved by the order dated 1.11.2011 passed by the learned Single Judge declining to quash Clause 4.2 of OJEE, 2011 Brochure prescribing the upper age limit of 25 years for the entrance examination of 2011, which is the minimum eligibility criteria for admission to the first year MBBS who has secured 141 rank in medical stream and 36 rank as Green Card holder has filed this writ appeal urging various facts and legal contentions and prayed to set aside the impugned order by allowing the Writ Appeal and quash the Clause 4.2 in the Prospectus of OJEE, 2011.
2. The brief facts are stated for the purpose of appreciating the rival legal contentions urged on behalf of the parties with a view to find out as to whether the appellant has made out a case for interference with the impugned order of the learned Single Judge and issue a writ of certiorari to quash Clause no. 4.2 of the OJEE, 2011 Prospectus prescribing the upper age limit of 25 years for admission to the first year MBBS and as to whether refusal to quash the same amounts to failure to exercise judicial review power as it is in violation of Articles 14,21, and 21A of the Constitution of India. That amounts to substantial question of law that would arise for consideration of this Court ? What order ?
3. The date of birth of the appellant is 10th of May, 1984. Clause 4.2 of the Brochure of OJEE, 2011 prescribes the upper age limit as 25 years for admission to MBBS Course and accordingly he was issued admission card for appearing at the entrance examination conducted by the OJEE, 2011 which he did. He secured 141st rank in the general category and 36th rank in the Green Card holder category in the merit list. Learned Single Judge did not consider the fact that in the absence of prescription of the upper age limit in the regulation framed by the Medical Council of India in exercise of its power under Section 33 of the Indian Medical Council Act, 1956 and also in the Rules or Regulation under Section 4(1) of the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee)Act, 2007 prescribing the upper age limit by the OJEE in its prospectus is without authority of law and the various decisions of the Supreme Court upon which strong reliance is placed by the learned counsel Mr. Ashok Mohapatra, particularly the Constitution Bench decision in the case of Dr. Preeti Srivastava & Anr. Vs. State of M.P. & Ors., reported in AIR 1999 SC 2894, Medical Council of India Vs. State of Karnataka, reported in (1998)6 SCC 131, Sanatan Gauda V. Berhampur University & Ors., reported in AIR 1990 SC 1075, Chowdhury Navin Hemabhai & Ors. Vs. State of Gujarat & Ors., reported in AIR 2011 SC 1209, State of Kerala Vs. Kumari T.P. Roshana & Anr., reported in (1979) 1 SCC 572 and Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh & Ors., reported in AIR 2011 SC 1974 in support of the proposition that regulation made under Statute have the force of law. Any action or order in breach of terms and conditions of Regulations is illegal and invalid. Learned Single Judge also did not consider the prospectus of various States in the country which did not prescribe the upper age limit as per the MCI guideline. There are different entrance examination for admission to MBBS course of AIIMS and other Universities and institutions conducting entrance examination for admission to MBBS course where there is no prescription of upper age limit except the minimum age limit of 17 years. In the prospectus for AIIMS MBBS Examination August, 2011 it is mentioned that candidates born on or after 2nd January, 1995 are not eligible to apply. The aforesaid relevant facts and legal contentions have not been examined in the proper perspective by the learned Single Judge with reference to the various judgments of the Apex Court upon which strong reliance is placed. Non- consideration of the same rendered the impugned order bad in law. The clause 4.2 in the Prospectus is in violation of the provisions of Medical Council of India Act, regulations and the decisions referred to supra and fixing the upper age limit of a candidate in the prospectus by the OJEE in the State of Orissa for admission to the First year MBBS course, violates the principles of natural justice and the fundamental rights guaranteed under Articles 14, 21, 21-A of the Constitution of India. As the Medical Council of India which is the competent authority for regulating the admission of students in the MBBS Course has not prescribed the upper age limit in the Regulation and so also in the Orissa Act of 2007 and the Rules framed thereunder by the Orissa State Government. Therefore, the action of the OJEE is arbitrary and unreasonable, violative of fundamental rights referred to supra guaranteed to the appellant. Placing reliance upon the decision of the Supreme Court in the case of Dr. Ambesh Kumar Vs. Principal, L.L.R.M. Medical College, Meerut, reported in AIR 1987 SC 400 and in the case of State of Tamil Nadu Vs. S.V. Bratheep, reported in AIR 2004 SC 1861. The case of Ambesh Kumar arose from the notification issued by the State Government laying down the qualification regarding the eligibility of a candidate to be considered for admission to Post-Graduate Medical Courses in Uttar Pradesh and the Apex Court ruled that the State Government by laying down the eligibility qualification namely, obtaining of certain minimum marks in the MBBS examination by the candidate has not in any way encroached upon the Regulations made under the Indian Medical Council Act, nor does it infringe the central power provided in Entry 66 of List-I of the Seventh Schedule of the Constitution. The same principle was followed in the case of State of Tamil Nadu Vs. S.V. Bratheep with reference to Entry No.25 of List III and Entry No.66 of List I of the VII Schedule have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission, but if certain prescription of standards have been made pursuant to Entry 66 of List I. Those decisions have been erroneously applied by the learned Single Judge to the fact situation against the appellant to deny the relief so also the decision upon which reliance is placed namely, Mahatma Gandhi University & Anr. Vs. Jikku Paul & Ors., reported in 2011(4) SCALE 578 is also not applicable to the fact situation. Therefore, Mr. Ashok Mohapatra, learned counsel for the Appelant submits that the decisions upon which he has placed reliance has not been considered by the learned Single Judge. Therefore, the impugned order is vitiated in law and hence the substantial question of law would arise in this appeal. The learned Single Judge has not noticed the factual aspects namely, the Medical Council of India Regulations framed in exercise of its statutory power under Section 33 of the MCI Act with approval of the Central Government has not fixed the upper age limit in the Regulations, so also the State Government has not framed the Rule after Section 4(1) of Orissa Act 2007 was enacted prescribing the further entry condition of eligibility of maximum age of a candidate in exercise of its power vested under Entry no.25 of the Concurrent List (List III) of the Constitution for admission of candidates to the MBBS course in the State of Orissa. Therefore the order of the learned Single Judge is vitiated in law and is liable to be set aside by allowing the appeal and granting the relief by issuing a writ of certiorari to quash Clause 4.2 of the Information Brochure of OJEE 2011 in prescribing the upper age limit of 25 years as the minimum eligibility criteria for admission of a candidate to first year MBBS course.
4. It is the case of the appellant that the OJEE has allowed the appellant to take entrance examination and he has been assigned 141st rank in the general category in the medical stream and 36th rank in the Green Card Holder category. Therefore, the OJEE is estopped in applying the said clause and to deprive the right of the appellant to get admission to the First year MBBS course. Even the juniors below the rank of the appellant have been admitted in the MBBS course whereas admission of the appellant into the course has been denied for the reason that the appellant is over aged, which action of the respondent nos. 2 and 4 is contrary to the decision of the Supreme Court in the case of Sanatan Gauda Vs. Berhampur University & others, reported in AIR 1990 SC 1075.
5. Learned counsel Mr. Palit appearing on behalf of OJEE and learned Government Advocate Mr. Mohapatra sought to justify the order of the learned Single Judge inter alia contending that Orissa JEE is empowered to prescribe the upper age limit of candidates for admission in to the First year MBBS course. The same submission is reiterated by Mr. Palit appearing for Respondent no. 2. The same is supported by Mr. Mohanty appearing on behalf of the Medical Council of India contending that the OJEE is empowered to fix the upper age limit of 25 years as on 31.12.2011. In support of the said contention, strong reliance has been placed upon the Prospectus of AIIMS-MBBS Entrance Examination in which it is stated that the candidates born on or after 2nd January, 1995 are not eligible to apply. So also in the Prospectus of Manipal University wherein it is stated that candidates born on or before 31.12.1991 are not eligible to apply. It is contended by him that even in the absence of the regulation; OJEE is competent authority to conduct entrance examination and is empowered to fix the upper age limit for admission to the MBBS course to maintain the standard of education. Therefore, they submitted that the appeal is liable to be dismissed as the impugned order passed by the learned Single Judge is a considered order after referring to the decisions of the Supreme Court with reference to the Regulation framed under the Medical Council of India and prescription of eligibility criteria approved by the Central Government in the Regulations. In addition to the same, the State Government also may laid down additional qualification regarding the upper age limit of a candidate for admission to the course and the same cannot be found fault with by this Court on the ground of lack of power of the OJEE for prescription of eligibility criteria. Therefore, the appellant was not entitled for seeking the relief in the writ petition to quash the Clause 4.2 in the Prospectus published in the academic year 2011.
6. With reference to the rival legal contentions urged by the learned counsel for the parties, the following points would arise for our consideration:-
(i) Whether fixing the upper age limit of 25 years in clause 4.2 of the Prospectus by the JEE for admission of students to the MBBS Course in the absence of prescription of such maximum age limit either in the Regulations framed by the MCI or the Rules framed by the Orissa State Government under the Orissa Act of 2007 is legal and valid?
(ii) Whether prescription of upper age limit of students in the prospectus by the JEE does not amount to violation of fundamental rights guaranteed to the appellant under Articles 14,19, 21 and 21A of the Constitution of India ?
(iii) Whether non-consideration of the legal grounds and the decisions of the Hon'ble Supreme Court referred t supra in support of the claim of the appellant by the learned Single Judge has vitiated the impugned order, and that would constitute the substantial question of law for interference with the impugned order in this appeal by this Court?
(iv) What order?
7. The aforesaid points are inter-related with each other and therefore, they are answered together in favour of the appellant for the following reasons.
It is not in dispute that the Central Government in exercise of its statutory power under Section 33 of the Indian Medical Council Act, 1956 has approved the Regulations framed by the MCI, regulating the admission of students to the MBBS Course by prescribing the eligibility criteria of minimum age and other relevant aspects for conducting the examination for admission to the MBBS course in the country. As per the decision of the Hon'ble Supreme Court in T.M.A. PAI Foundation & Ors. Vs. State of Karnataka & Ors., reported in (2002)8 SCC 481 and in the case of P.A. Inamdar & Ors. Vs. State of Maharashtra & Ors., reported in (2005) 6 SCC 537 , the State Legislature of the Odisha State has been empowered to enact law and regulate admission to the MBBS Course in the State in exercise of its power from Entry No. 25, Concurrent List III of VII Schedule to the Constitution. As could be seen from the Regulations of the MCI, no upper age limit is fixed by the MCI approved by the Central Government under the Indian Medical Council Act, 1956 regarding the upper age limit for a candidate to admit in the MBBS Course. No doubt, the State Government after the decision of the T.M.A. PAI Foundation and P.A. Inamdar cases referred to supra, has enacted Orissa Act of 2007. Neither in the Act nor in the Rules framed by the Orissa State Government, upper age limit of a candidate is fixed by the State Legislature or State Government in the Rules. The minimum age limit is fixed in the MCI Regulation that a candidate must have completed the age of 17 yeas on or before 31st December of the year admission to the MBBS Course but no upper age limit is fixed. Undisputedly, Clause 4.2 is framed by the OJEE who is a creature of the statute. It has no competency to fix the upper age limit of a candidate who will be seeking admission in the course as it will not have the status of framing either regulation or the Rules under the Orissa Act of 2007. Apart from the said Rule, the MCI Regulations are framed by the MCI which is approved by the Central Government, in exercise of its statutory power under Section 33 of the Indian Medical Council Act, 1956,which Act is enacted by the Parliament in exercise of its legislative powers from Entry No.66 of List I of VII Schedule regarding the qualification for admission to the MBBS Course to maintain the education standards. In the absence of Rules framed by the State Government fixing the upper age limit, the upper age limit prescribed by the OJEE authority cannot have the statutory status as it is not traceable to the provisions of the Orissa Act of 2007 or the Rules. In the absence of the same, fixing the upper age limit under Clause 4.2 in the Prospectus whereas most of the States in the country have not fixed the upper age limit for the reason that MCI Regulations do not provide for the same and therefore fixing the upper age limit in the Prospectus in the Orissa State is a clear case of discrimination unde Article 14 of the Constitution of India and it is without competency on the part of the OJEE. Denial of admission to the appellant for the reason that he is more than 25 years for admission in the MBBS Course in the State of Odisha for the academic year is certainly in violation of the fundamental rights guaranteed to him under Articles 14, 19(1)(g), 21 and 21A of the Constitution of India.
8. In this regard, reliance is rightly placed by the learned counsel for the appellant upon the Constitution Bench decision of the Hon'ble Supreme Court in the case of Dr. Preeti Srivastava & Anr. Vrs. State of M.P. & Ors referred to supra, the relevant portions of paragraph-35, 53, 55 and 57 are extracted below:-
"35. ............... Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
53. Secondly, it is not the exclusive power of the State to frame rules and regulations pertaining to education since the subject is in the Concurrent List. Therefore, any power exercised by the State in the area of education under Entry 25 of List III will also be subject to any existing relevant provisions made in that connection by the Union Government subject, of course, to Article 254.
55. ............... Therefore, the universities have to be guided by the standards prescribed by the Medical Council and must shape their programmes accordingly. The scheme of the Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council. For example, the medical qualifications granted by a university or a medical institution have to be recognised under the Indian Medical Council Act, 1956. Unless the qualifications are so recognised, the students who qualify will not be able to practise. ...........
57. In the case of Medical Council of India v. State of Karnatakaa Bench of three Judges of this Court has distinguished the observations made in Nivedita Jain. It has also disagreed with Ajay Kumar Singh v. State of Bihar1 and has come to the conclusion that the Medical Council regulations have a statutory force and are mandatory. The Court was concerned with admissions to the MBBS course and the regulations framed by the Indian Medical Council relating to admission to the MBBS course. The Court took note of the observations in State of Kerala v. T.P. Roshana (SCC at p. 580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has 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 into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent sub-standard entrance qualifications for medical courses.
These observations would apply equally to postgraduate medical courses. We are in respectful agreement with this reasoning.
9. In this regard, reliance is placed upon the decision of the Hon'ble Supreme Court in the case of Medical Council of India Vrs. State of Karnataka & Ors, referred to supra, the relevant portions of paragraph-27, 30, and 31 are extracted below:-
27. The State Acts, namely, the Karnataka Universities Act and the Karnataka Capitation Fee Act must give way to the Central Act, namely, the Indian Medical Council Act, 1956. The Karnataka Capitation Fee Act was enacted for the sole purpose of regulation in collection of capitation fee by colleges and for that, the State Government is empowered to fix the maximum number of students that can be admitted but that number cannot be over and above that fixed by the Medical Council as per the regulations. Chapter IX of the Karnataka Universities Act, which contains provision for affiliation of colleges and recognition of institutions, applies to all types of colleges and not necessarily to professional colleges like medical colleges. Sub-section (10) of Section 53, falling in Chapter IX of this Act, provides for maximum number of students to be admitted to courses for studies in a college and that number shall not exceed the intake fixed by the university or the Government. But this provision has again to be read subject to the intake fixed by the Medical Council under its regulations. It is the Medical Council which is primarily responsible for fixing standards of medical education and overseeing that these standards are maintained. It is the Medical Council which is the principal body to lay down conditions for recognition of medical colleges which would include the fixing of intake for admission to a medical college. We have already seen in the beginning of this judgment various provisions of the Medical Council Act. It is, therefore, the Medical Council which in effect grants recognition and also withdraws the same. Regulations under Section 33 of the Medical Council Act, which were made in 1977, prescribe the accommodation in the college and its associated teaching hospitals and teaching and technical staff and equipment in various departments in the college and in the hospitals. These regulations are in considerable detail. Teacher-
student ratio prescribed is 1 to 10, exclusive of the Professor or Head of the Department. Regulations further prescribe, apart from other things, that the number of teaching beds in the attached hospitals will have to be in the ratio of 7 beds per student admitted. Regulations of the Medical Council, which were approved by the Central Government in 1971, provide for the qualification requirements for appointments of persons to the posts of teachers and visiting physicians/surgeons of medical colleges and attached hospitals.
(Emphasis is laid by this Court)
30. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical college or institution, it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned Single Judge was right in his view that no medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government and that Sections 10-A, 10-B and 10-C will prevail over Section 53(10) of the State Universities Act and Section 4(1)(b) of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and/or the university before 1-6-1992 could continue would be allowing an illegality to perpetuate for all time to come. The Division Bench, in our opinion, in the impugned judgment was not correct in holding that admission capacity for the purpose of increase or decrease in each of the medical colleges/ institutions has got to be determined as on or before 1-6-1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical colleges and not with reference to the minimum standard of education prescribed under Section 19-A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jain case does not say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that only future admissions will have to be regulated on the basis of the capacity fixed or determined by the Medical Council. The plea of the State Government that power to regulate admission to medical colleges is the prerogative of the State has to be rejected.
31. What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act.
10. Reliance is placed by the learned counsel for the appellant upon the decision of the Hon'ble Supreme Court in the case of Osmania University Teachers' Associaton Vs. State of A.P., reported in (1987) 4 SCC 671 referred to supra, the relevant paragraphs- 14, and 15 are extracted below:-
14. Entry 25 List III relating to education including technical education, medical education and universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to coordinate and determine the standards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a coordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to "education"
has been distributed between List I and List III of the Seventh Schedule.
(Emphasis is laid by this Court)
15. The Parliament has exclusive power to legislate with respect to matters included in List I. The State has no power at all in regard to such matters. If the State legislates on the subject falling within List I that will be void, inoperative and unenforceable.
(Emphasis laid by this Court )
11. Reliance is placed by the learned counsel on behalf of the appellant upon the decision of the Hon'ble Supreme Court in the case of State of Kerala Vs. Kumari T.P.Roshana & Anr., reported in (1979) 1 SCC 572 referred to supra, the relevant paragraph-16 of which is extracted below:-
16. The Indian Medical Council Act; 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses.
(Emphasis laid by this Court)
12. Further reliance is placed by the learned counsel for the appellant upon Article 256 of the Constitution which postulates that the executive power of every State shall be so exercised as to ensure compliance with the laws made by the Parliament and any existing laws which apply in that State. The said provision is aptly applicable to the fact situation as fixing of the upper age limit of a candidate for admission to the MBBS Course by the OJEE in exercise of its power is contrary to the MCI Act and Regulation which are applicable in the State of Orissa.
13. Further, he has rightly placed reliance upon the decision of the Supreme Court in the case of Pepsu Road Transport Corporation, Patiala Vs. Sharanjit Kaur, reported in AIR 2011 SC 1974 in support of the proposition that Regulations made under the Statute have the force of law, any action or order in breach of the terms and conditions of Regulation is illegal and invalid. The said principle has been laid down after referring to various earlier decisions of the Supreme Court at paragraphs 16, 17, 23 and 30 of the Judgment are extracted below:-
"16. It is well settled law that the Regulations made under the statute laying down the terms and conditions of service of employees, including the grant of retirement benefits, has the force of law. The Regulations validly made under statutory powers are binding and effective as the enactment of the competent legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the Regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the Regulations shall amount to violation of Regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid.
17. In Sukhdev Singh V. Bhagatram Sardar Singh Raghuvanshi, (1975)1 SCC 421, this Court, while elaborately discussing the nature and effect of the Regulations made under the Statute, has observed :
23. The noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down in the regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees. These regulations in the statutes are described as "status fetters on freedom of contract". The Oil and Natural Gas Commission Act in Section 12 specifically enacts that the terms and conditions of the employees may be such as may be provided by regulations. There is a legal compulsion on the Commission to comply with the regulations. Any breach of such compliance would be a breach of the regulations which are statutory provisions. In other statutes under consideration viz. the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to Section 12 of the 1959 Act the terms and conditions of employment and conditions of service are provided for by regulations. These regulations are not only binding on the authorities but also on the public.
30. ........In this view a regulation is not an agreement or contract but a law binding the corporation, its officers, servants and the members of the public who come within the sphere of its operations. The doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the regulations and any other subordinate legislation. The regulations made under power conferred by the statute are subordinate legislation and have the force and effect, if validly made, as the Act passed by the competent legislature.
14. The relevant underlined portion of paragraph-9 of the judgment reported in Vidya Dhar Pande Vs. Vidyut Grih Siksha Samiti, reported in AIR 1989 SC 341 is extracted below:
9. The question whether a regulation framed under power conferred by the provisions of a statute has got statutory power and whether an order made in breach of the said regulation will be rendered illegal and invalid, came up for consideration before the Constitution Bench in the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi. In this case it was held that: [SCC p. 438 : SCC (L&S) P. 118, para 33] "There is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Oil and Industrial Finance Corporation are all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees.
These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violations of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employee a statutory status and impose restriction on the employer and the employee with no option to vary the conditions."
15. In view of the aforesaid statement of law laid down by the Hon'ble Supreme Court in the case of Sukhdev Singh Vrs. Bhagatram Sardar Singh Raghuvanshi which decision has been referred to in the case of Pepsu Road Transport Corporation Vs. Mangal Singh at paragraph-18 of the judgment wherein paragraph-33 from Sukhdev Singh Vrs. Bhagatram Sardar Singh Raghuvanshi is extracted, is rightly placed reliance by the learned counsel for the appellant in support of the proposition of law that the statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violation of rules and Regulations. The Rules and Regulations framed under statute are framed regarding the eligibility for admission in the MBBS course and such terms and conditions in order to maintain good standards in the professional Medical course for its implementation. In the absence of the Regulation framed by the Medical Council of India with prior approval of the Central Government fixing the upper age limit of a student for admission to the MBBS course in a college, fixing such upper age limit in the prospectus by OJEE who is not authorised in law and the same is in violation of the provisions of the MCI Regulations. Therefore, the same will not be binding upon the State Government and its authorities, who will be conducting the Entrance test examination for the eligible candidates to get seats allowed in their favour for the course. Therefore, insertion of clause 4.2 in the Prospectus by the OJEE is without any authority of law and the same is liable to be quashed. The said clause is also in violation of the fundamental rights guaranteed to the petitioner under Articles 14, 19(1)(g) and 21 and 21A of the Constitution of India. Hence the Clause 4.2 is liable to be struck down as the same is contrary to the MCI Act and Regulations.
16. The action of the opposite party nos. 2 and 4 in not admitting the appellant though he was permitted to appear in the entrance examination and secured 141st rank and candidates who were below his rank have been admitted in the course is not correct. Also one Jnana Ranjan Nayak and Sonali Subhadarshini who are over aged i.e. above 25 years were permitted to appear in the OJEE Entrance Examination and Sonali Subhadarshini was admitted in the first year MBBS Course for the academic year of 2011-2012. Thereby the petitioner is discriminated in not admitting in the course for the reason that he is over aged which action of the opposite parties is in violation of Article 14 of the Constitution of India and on this ground also the appellant is entitled for the relief. Further the opposite party nos. 2 and 4 having permitted the appellant to appear in the entrance examination are now estopped from not admitting him to first year MBBS course for the reason that he had attained age beyond upper age limit. He has rightly placed reliance upon the decision of the Supreme Court in support of the aforesaid proposition of law in the case of Sanatan Gauda Vs. Berhampur University & Ors., reported in AIR 1990 SC 1075, which decision is aptly applicable to the fact situation wherein the Apex Court has held as follows:-
10. This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his marks-sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and Intermediate Law examinations. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law examinations that the University raised the objection to his so-called ineligibility to be admitted to the Law Course.
The University is, therefore, clearly estopped from refusing to declare the results of the appellant's examination or from preventing him from pursuing his final year course.
17. In view of the aforesaid legal principle laid down by the Apex Court in the above referred case refusal of admission to the appellant in the first year MBBS course by the Respondent nos. 2 and 4 is in violation of the aforesaid judgment of the Supreme Court. The same is arbitrary and unreasonable and therefore the same cannot be allowed to sustain. Hence, we pass the following order.
(i) For the reasons stated supra, the writ appeal is allowed and impugned order of the learned Single Judge passed in W.P.(C) No. 18599 of 2011 on 1.11.2011 is hereby set aside.
(ii) Clause 4.2 prescribed by the OJEE in the Information Brochure is hereby quashed as it is in violation of the MCI Regulations and the Orissa Act of 2007 and Rules.
(iii) Since the last date for admission to the course for this academic year has expired on 30.9.2011, we direct the aforesaid Respondent Nos. 2 and 4 to admit the appellant for the next academic year 2012-2013 in the first year MBBS Course as we have struck down the Clause 4.2 in the Prospectus by allowing the writ petition holding that the same is without Authority of law and contrary to the MCI Regulation.
Appeal allowed.