Punjab-Haryana High Court
Akanksha Sharma vs State Of Punjab And Another on 25 August, 2014
Author: K. Kannan
Bench: K. Kannan
CWP No. 13340 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 13340 of 2014
Date of decision: 25.08.2014
Akansha Sharma
..........Petitioner
Versus
State of Punjab and others
.......Respondents
II. CWP No. 13299 of 2014
Harshvir Masson
..........Petitioner
Versus
Baba Farid University of Health Sciences and others
.......Respondents
III. CWP No. 14473 of 2014
Deep Singh
........Petitioner
Versus
State of Punjab and others
........Respondents
Coram:- HON'BLE MR. JUSTICE K. KANNAN
Present: Ms. Harpreet Kaur Dhillon, Advocate
for the petitioner in CWP No. 13340 of 2014.
NAVEEN NAGPAL
2014.08.29 11:03
I attest to the accuracy and
integrity of this document
CWP No. 13340 of 2014 2
Mr. Surinder Garg, Advocate
for the petitioner in CWP No. 13299 of 2014.
Mr. H.S. Dhandi, Advocate
for the petitioner in CWP No. 14473 of 2014.
Ms. Vandana Malhotra, Addl. AG, Punjab.
Mr. K.S. Sandhu, Advocate
for Baba Farid University.
Mr. Gurminder Singh, Senior Advocate with
Mr. Yagyadeep, Advocate for Medical Council of India.
Mr. Naveen Chopra, Advocate for CBSE.
Mr. Aayush Arora, Advoate for
Mr. Deepak Sibbal, Senior Advocate
for respondents No. 4 to 6 in CWP No. 13340 of 2014 and
for respondents No. 5 to 7 in CWP No. 13299 of 2014.
1.Whether Reporters of local papers may be allowed to see
the judgment? Yes.
2. To be referred to the Reporters or not? Yes.
3. Whether the judgment should be reported in the Digest? Yes.
***
K. KANNAN J. (Oral)
1. All the three writ petitions are as regards claims for admissions to MBBS Courses. CWP No. 13340 of 2014 is at the instance of an aspirant to MBBS Course, challenging the notification issued on 07.03.2014 stipulating a minimum eligibility criterion to be a pass in 50% in All India Pre-Medical Test (AIPMT) for admission to MBBS and BDS Course. The petitioner would seek for redetermination of eligibility without requiring a pass in the test and seeking for restoration of the status-quo ante that allowed for NRI candidate to seek admission on securing the equivalence certificate for CBSE pass. CWP No. 13299 of 2014 contains similar prayer and under the similar category. CWP No. NAVEEN NAGPAL 2014.08.29 11:03 I attest to the accuracy and integrity of this document CWP No. 13340 of 2014 3 14473 of 2014 is at the instance of a candidate, who seeks for admission as ward of terrorist affected family, would seek for a reduction of the eligibility criteria to fill up the admitted vacancies that existed on the results not throwing up enough candidates in the said category to fill up the seats reserved for the said category by lowering the cut of marks for admission.
2. The counsel appearing on behalf of the NRI candidates have common ground to canvass that they belong to s separate class of persons who pay in foreign exchange a higher fee and who could have gone to any other foreign country but they were seeking for admission in the country of their origin. Earlier, the University and the Government had only prescribed a certificate of equivalence to the Indian run Boards like CBSE or State Boards in the +2 examinations and they were not required to take any common entrance examination. Citing the past practice, the petitioners would contend that the specification in the prospectus requiring that their admission would be regulated on marks obtained in AIPMT and that it was also necessary to obtain minimum marks of 50% in AIPMT 2014, were contrary to MCI Regulations. The petitioners contend that MCI itself had detailed three different modes and one of the modes of eligibility is on the basis of relative merit in the marks secured in +2 examination. The petitioner would contend that MCI which is an institution that lays down standard of excellence, has allowed for differntial modes of admission for NRI candidates in several other States and it was only in the State of Punjab that it has side-stepped to allow the State to lay down its own norms, which were needlessly extracting and NAVEEN NAGPAL 2014.08.29 11:03 I attest to the accuracy and integrity of this document CWP No. 13340 of 2014 4 cast a burden of seeking for compliance of requirement of what would be only appropriate for students studying in India. The learned counsel would argue that students who studied in foreign schools have different approaches to education and it would be impossible to set the same standard at the time of entry. The counsel would passionately urge that the candidates are not without merit and they have rather done well even in the entrance test securing 45% and more. There is a typical situation in Punjab where there were not enough candidates who had passed the minimum eligibility criterion laid down for filling up the seats and the University has approached the Government of Punjab to the Union for relaxation of the eligibility criterion and it is believed that there is an active consideration for reduction of the cut-off marks. Even if the complete abrogation of the requirement of pass in AIPMT were to be found as unviable, a selective reduction of marks by 5% to the NRI category would be most justified.
3. The petitioner appearing in CWP No.14473 of 2014 would likewise pray for a reduction of the minimum cut-off marks from 50 to 45 since the quota of 9 seats for wards of terrorist affected persons have not been filled up and if there is not anyone candidate securing the prescribed cut-off marks, it would only appropriate to provide for a reduction of the marks for them as well.
4. Joining issues on the points raised, the arguments placed through the Medical Council of India by the learned senior counsel appearing for the council is that the subject of education is in Entry 25 of NAVEEN NAGPAL 2014.08.29 11:03 I attest to the accuracy and integrity of this document CWP No. 13340 of 2014 5 list 3 of Schedule 7 of the Constituion of India ever since 42nd constitutional amendment introducing education including technical education as falling within concurrent jurisdiction, the States have a say in the matter of framing their own laws and regulations to determine the merit criteria. While the Medical Council of India has laid down three different modes for determining eligibility that includes the marks secured in +2 examinations, the prescription of an entrance test is also one of the modes of determination of eligibility. Consequently, if the State prescribes to itself to a particular mode of securing admissions through entrance test, there no conflict with Medical Council of India for it to find fault with. The determination of eligibility through common test with prescription of minimum marks with 50% was, under the circumstances well within the State powers. Indeed the criteria for admission to medical colleges as contained in the notification by the Government on 07.03.2014 stipulated in classes 3 and 7 as follows:-
"3. The admission to the MBBS/BDS courses in the categories including NRI's will be based on marks obtained in AIPMT.
7. In order to be eligible for admission to MBBS/BDS course, it shall be necessary for the candidate to obtain minimum of 50% marks (45% for persons with locomotory disability of lower limbs and 40% for SC/BC categories) in AIPMT- 2014."
It is further contended that, if at all tenable, the challenge to the NAVEEN NAGPAL 2014.08.29 11:03 I attest to the accuracy and integrity of this document CWP No. 13340 of 2014 6 notification should have been made immediately after it is issued by the Government of Punjab stating forth the stipulations as referred to above and having participated in the entrance test and failng to make a grade, they cannot mount a challenge to the mode of selection after the results were announced.
5. The point for consideration is whether the prescription in a Government notification setting out the requirement of pass in the entrance test and further stipulation of minimum marks could be complained of by a candidate who takes the examination and having not made the grade to come with the complaint through the writ petitioners. To me, the answer would have to be ssimply 'No', for, having taken part in the examination, it will be impermissible for a candidate complain that the criterion laid down was arbitrary. Indeed there could be nothing arbitrary about requirement of passing an entrance examination and stipulating also a minimum bench mark, both of which find place as modes of enlistment of meritorious candidates even under the the MCI Regulations. The petitioners, if at all, could have a case only if the requirement was made compulsorily subsequent to the selection which in this case it is not. I would even find that the entrance test is a secure method of standardizing the merit of candidates who come from various streams of school education.
6. Even a plea of reduction of eligibility criterion in the marks secured cannot be taken up now unless the State has decided to reduce the marks to allow for filling up of vacant seats generally across the board NAVEEN NAGPAL 2014.08.29 11:03 I attest to the accuracy and integrity of this document CWP No. 13340 of 2014 7 for all categories on uniform basis. It cannot be picked up for any particular class for admission to its benefit. Wherever lower marks for eligibility have been fixed, such as it obtains in the case of SC/BC candidates or physically handicapped persons, they have come through recommendation of constitutional bodies like SC/ST Commissions and Statutory bodies like Commissioner for Physically Handicapped persons established under the Presons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995.
7. The NRI candidates themselves are surely seen as a distinct class to the extent to which reservation is made possible for 15%. Either the stipulation of entrance test as a mode of determination of merit and eligibility for admission or the scope for reduction of marks cannot be pleaded for by the petitioners for the distinctness set out to them gives them only a particular percentage of reservation and beyond that any other form of dilution of entry level criterion would be legally untenable. The relaxation of marks for SC candidates has come through Commission constituted under the Constituion and for PWD candidates through Commission constituted under the statutory Commission constituted under Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995. The same type of relaxation cannot be fixed to any other class. Under the circumstances, I will not find there is any scope for challenge to the notification issued by the Government as possible. The past practice of there being no entrance test for NRI candidates or that all the States do not follow the same mode of assessment of merit through tests cannot be grounds of challenge after the NAVEEN NAGPAL 2014.08.29 11:03 I attest to the accuracy and integrity of this document CWP No. 13340 of 2014 8 examinations were held and after the petitioners partook in the same and failed in their attempts to make the grade.
8. The reduction of marks only to the wards of terrorist affected persons to help them secure admission shall be impermissible for the same reasons as set forth in the earlier paragraphs.
9. The challenge to the notification and rejection of the candidature cannot obtain favourable consideration and they are consequently dismissed. All the writ petitions are dismissed.
(K. Kannan) JUDGE August 25, 2014 naveen NAVEEN NAGPAL 2014.08.29 11:03 I attest to the accuracy and integrity of this document