Madhya Pradesh High Court
Dr. Rupal Bandi vs State Of M.P. And Anr. on 3 September, 1993
Equivalent citations: AIR1994MP103, AIR 1994 MADHYA PRADESH 103, (1994) 1 CIVLJ 168
JUDGMENT V.S. Kokje, J.
1. This order shall govern the disposal of M.P. No. 1125/93, Dharmendra Jhawar v. State of M. P., M.P. No. 1161/93 Dr. Ashmeet Choudhary v. State of M.P., M.P. No. 1173/93 Dr. Vijay v. State of M.P. and M.P. No. 1400/93 Dr. Samir v. State of M.P. which were heard together as they involved common points.
2. The Petitioners in all the aforesaid cases were candidates at the Entrance Examination held for admission to Post Graduate Courses in the Government Medical Colleges of the State of Madhya Pradesh. The Examination is referred to hereafter as Pre-P.G. Examination.
3. The petitioner in this case, has had a meritorious record throughout his educational career. After passing the M.B.B.S. Examination in the year 1992 he commenced his one year compulsory rotating internship on 1st June, 1992. The Petitioner in M. P. No. 1125/93, Dr. Dharmendra Jhawar has also been a meritorious student throughout his educational career. He completed his M.B.B.S. Course in the year 1992 and commenced one year compulsory rotating internship on 1st June, 1992. The Petitioner in M.P. No. 1161/93 Dr. Ashmeet Choudhary also holds a brilliant academic record. He passed his M.B.B.S. Examination in May, 1992. He also commenced his one year compulsory rotating internship on 1st June, 1992. The Petitioner in M.P. No. 1173/93 Or. Vijay Agarwal also has a brilliant academic record and has passed his M.B.B.S. Examination in the year 1992 and commenced his one year compulsory rotating internship on 16th April, 1992. The Petitioner in M.P. No. 1400/93 Dr. Samir Shukla also had a brilliant academic record and has passed his M.B.B.S. Examination in the year 1992 and has completed one year compulsory rotating internship on 15-4-1993.
4. The Professional Examination Board set-up by the State of Madhya Pradesh conducted an Entrance Examination for admission to Post-Graduate Courses in Medical Colleges of Madhya Pradesh. The Petitioners in all these cases were candidates at that Examination. Though the Examination was actually held in the year 1993, it was an Examination for the year 1992. The prospectus published by the Professional Examination Board (Ann. P/7) was entitled Pre-P.G. 1992. Chapter III in the prospectus (Ann. P-7) reproduced the Rules for the competitive Examination. Rule 3.1.2. entitled "Introduction" reads as under:-
"3.1.2. Introduction: In compliance of the directives of Hon'ble Supreme Court of India and High Court Madhya Pradesh, V. P. Mandal Madhya Pradesh Bhopal would be conducting the competitive entrace examination for 1992 for 75% of post graduate seats in the Medical Colleges under the State Govt. of Madhya Pradesh. This entrance examination is being conducted for admission to various post graduate courses (MD/MS) in different medical colleges of the State and MDS course in College of Dentistry, Indore (Appendix-I). It will be governed by the rules and regulations specified by the Govt. of M.P. Deptt. of Public Health and Family Welfare for the same from time to time."
Rule 3.2.6. set-out eligibility criteria. The relevant part of which reads as under:--
"3.2.6, Eligibility criteria -- (i) He/She must be an Indian National and (ii) he must have passed MBBS (all examinations' of MBBS course) from any medical college of Madhya Pradesh recognised by Medical Council of India, and must have completed compulsory rotating internship in a hospital recognised by Medical Council of India or after full registration with State Medical Council on or before 31-12-1992."
5. M.P. State Competitive Post Graduate Entrance Examination for Admission to Medicall Courses (MD/MS) and Dental Course (MDS), Rules (hereinafter called the 'Pre-P.G. Rules') set-out the eligibility criteria in the same terms as is printed in the prospectus (Annexure P-7) except mentioning instead -of the date, mentioned in the prospectus i.e. "before 31-12-1992" words "before, the competitive admission test is held" Rule 3.2.11(v) provided as under:--
"3.2.11(v): Candidates securing less than 50% marks in the competitive entrance examination will not fee considered for admission and their names will not be included in the merit list.
6. The Petitioners contend that the rule requiring compulsory rotating internship to be completed before 31-12-1992 is arbitrary and cannot be enforced. They also contend that there cannot be any reduction in the qualifying percentage of marks below 50%. It is contended that Petitioners have been disqualified after they had successfully passed in the written test and the qualifying percentage of marks has been reduced to 42% from 50% in the case of General Category and 24% from 50% in the case of students belonging to Schedule Castes and Scheduled Tribes. According to the Petitioners they have been illegally deprived of admission on the.ground that they had not completed one year compulsory rotating internship before 31-12-1992.
7. A regular return has not been filed in the case but reply to application for ad interim writ has been filed in detail setting out the case of the Respondents. There are two applications for intervention in the case, one on behalf of Dr. Ajay Karkare and six others. They have opposed the petition on the ground that the Petitioner and candidates like him who had not completed internship before 31-12-1992 were not eligible for taking the Examination and they have taken the Examination despite the rule which provided that the candidates must have completed their one year rotating internship before 31-12-92. These intervenes contend that the petitioner and the candidates like him have taken the Examination concealing the fact that they were not eligible having not completed their internship before 31-12-92. On the grounds of equity also according to these interveners, the petition deserves to be dismissed, the petitioners having not come to Court with clean hands. The other Intervener is Dr. Samir Shukla the Petitioner in M. P. No. 1400/93. His case is being similar to the Petitioner in this case, he has naturally supported the petition. Certain amendments were sought in the petition taking legal points and certain documents were also filed. The parties were told that all the points raised in the amendment application will be allowed to be raised and the documents filed would be considered and the hearing took place on that understanding.
8. In M. P. No. 1125/93 Dr. Dharmendra Jhawar v. State of M. P., apart from the aforesaid points taken in the petition, certain amendment applications were moved. The points raised in those were allowed to be argued at the hearing. One of the amendments sought is of radicle nature. It was raised through I.A. No. 3742/93. This challenge the notification issued in the Gazette on 30-1-1993 in the name of the Governor amending the P. G. Rules on the ground that there was no Governor in the State who could represent the State and the President of India with the aid and advice of Council of Ministers in the Central Government could only function as executive head of the State. In this petition also there is an application for intervention by Dr., Piyush Agrawal. This Intervener is affected because he is being deprived of admission to M.G.M. Medical College, Indore because of the petition. Similar is the case of another Intervener Dr. Priti Bhartiya.
9. In M. P. No. 1161/93 Dr. Ashmeet Choudhary, the grounds are the same as are taken in this (Dr. Rupal Bandi's) case and in that case also amendment applications were moved and fresh documents were filed. The points raised in the amendment were also considered at the time of final hearing.
10. In M. P. No. 1173/93 Dr. Vijay Agrawal the Petitioner, while adopting other grounds of the other petitions has also raised the plea of promissory estoppel as he was allowed to take the Examination. In that case also Dr. Ajay Karkare Intervener raised the similar plea which he raised in this (Dr. Rupal Bandi's) case. In M. P. No. 1400/93 Dr. Samir Shukla the petitioner raised the same points as were raised in other petitions.
11. The burden of arguments from the Petitioners side mainly rests on the principle by now well settled that in case of admissions to Medical, Colleges and specially in Post-
Graduate Courses, merit alone has to be the criterion. Therefore, at any time candidates with lower merit cannot be preferred to candidates with higher merit on the basis of an arbitrary cut-off date to decide who will be eligible. It has been contended that when the examination is taken in 1993 and when the course for which the admissions are to be given had to start in the month of July, 1993, putting 31-12-92 as the cut-off date would be extremely arbitrary and violative of Article 14 of the Constitution of India. It was further contended that relaxation of marks below 50% would be arbitrary, as it would com promise the principle of merit to be the only criterion for selection for admission to post graduate medical courses.
12. Shri A. M. Mathur Senior Advocate appearing for Dr. Rupal Band in this case took us through the entire case law on the point that merit should be the only criterion for selection for admission to post graduate medical courses; In Dr. Jagdish Saran v. Union of India, AIR 1980 SC 820 in para 23 the Supreme Court has approved the recommendation of the Indian Medical Council that students for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course.
13. In Dr. Pradeep Jain etc. v. Union of India, AIR 1984 SC 1420 the Supreme Court endorsing the view taken in Dr. Jagdish Saran's case (supra) observed that excellence cannot be allowed to be compromised by any other considerations in the matter of selection for admissions to Medical Courses because that would be detrimental to the interest of the nation. In Nidamarti Maheshkumar v. State of Maharashtra, AIR 1986 SC 1362 in paras 3 and 4 the Supreme Court affirming the view taken in Dr Pradeep Jain's case held that Primary consideration in selection of candidates for admission to the medical colleges must be merit and the object of any rules which may be made for regulating admissions to the medical colleges must be to secure the best and most meritorious students. In Municipal Corporation of Greater Bombay v. Thukral Anjali Deokumar, AIR 1989 SC 1194 the Supreme Court reiterated that so far educational institutions are concerned, unless there are strong reasons for exclusion of meritorious candidates, any preference other than in order of merit, will not stand the test of Article 14 of the Constitution.
14. There cannot be any quarrel with the proposition that admissions to post-graduate courses have to be made strictly on the basis of merit. But the merit has to be judged of eligible candidates alone. The real question in this case is not whether merit should be the sole criterion for selection but, what should be the cutt-off date on the basis of which eligibility for competing at the selection is to be determined. The real attack in these cases is on fixing of 31-12-92 as the cut-off date for completion of one year rotating internship to enable the candidates to participate in the competition for selection. It is contended on behalf of the petitioners that merit has to be judged of all those who would be eligible for admissions to the courses on the date on which the course is to start. Fixing any other earlier date as the cut off date would have no nexus with the purpose of selection, id est. to select the best amongst available candidates. The petitioners contend that they are being debarred from selection on the basis of a wholly irrelevant cut-off date for judging their eligibility for admission to the post-graduate courses. It is contended that when the course was to start in July 1993, 31-12-1992 as the date for completion of one year rotating internship has absolutely no nexus with the purpose of admission. All those who had acquired eligibility qualifications as per the rules as on the date of commencement of the course should according to the petitioners, be allowed to compete and the admissions should be granted on the basis of merit from amongst all such candidates who have acquired the eligibilty qualifications as on the date of commencement of the course.
15. It is in this context that three Dr. Dinesh Kumar's cases reported in AIR 1985 SC 1059, AIR 1986 SC 1877 and 1987 (4) SCC 459 were cited. The first case reported in AIR 1985 SC 1059 is not of much relevance so far as the problem before us is concerned. The third case reported in 1987 (4) SCC 459 is also not of much relevance so far as the problem before us is concerned. The second decision reported in AIR 1986 SC 1877 has been pressed into service to demonstrate that there should be only one examination in the years and if 1993 examination was being held candidates acquiring eligility during the year should be allowed to compete. In para 12 of this judgment it has been observed as follows :--
"12. Thirdly, so far as the All India Entrance Examination for the post-graduate course is concerned we are of the view that there should be only one examination in a year as suggested by the Government of India in the Scheme submitted by it. But we are of the view that it would not be right to insist that a student should not be eligible for appearing at this examination unless he has completed compulsory rotating internship practical training programme and obtained registration from the Medical Council of India of any of the State Medical Councils. That would greatly inconvenience the students. The final MBBS Examination is normally held in October, November each year and thereafter every student has to undergo compulsory rotating internship practical training for a period of one year and then only he can be awarded MBBS Degree and he can obtain registration from the Medical Council of India or a State Medical Council. If therefore it is provided that a student shall be eligible to appear at the All India Entrance Examination only after he has acquired MBBS Degree and obtained registration, it would mean that he would be able to appear at such examination only after a lapse of about one year from the date of his passing MMS Examination. He would have to start preparing again for appearing at the All India Entrance Examination after a break of one year which is bound to cause a certain amount of hardship and inconvenience. It would be better in our view if a student is allowed to appear at the All India Entrance Examination after the result of the MBBS Examination is announced and he is declared to have passed MBBS Examination, because at that date the theoretical part of the syllabus would be fresh in his mind and it would save him the trouble of reading the entire course over again after a period of one year. We would, therefore, direct that the tentative programme for the All India Entrance Examination set out in Clause 13 of the Scheme of Examination for admission to post-graduate courses should be modified and the modified programme should be as follows :--
General announce- Last week of ment November Last date for request for application form (i) By post 10th January (ii) From 20th January Cash counter Last date for receiv- 31st January ing application forms Competitive test Middle of March Result to be declared First week of May
Every student who has passed his MBBS Examination shall be eligible for appearing at this Examination even though he has not completed his compulsory rotating internship/practical training, but he shall not be entitled to be admitted to the post-graduate course until he has completed such internship or practical training and obtained registration either from the Medical Council of India or a State Medical Council. On this view, so far as admissions to Post-graduate Courses are concerned, it may not be possible to give effect to our judgment dated 22nd June 1984 (reported in AIR 1984 SC 1420), until the academic year commencing in 1988.' The students seeking admission to Post-graduate Courses for the academic year commencing in 1987 would be those who have completed their compulsory rotating internship/practical training in November/December 1986 and now to require them, after a break of one year, to prepare again for appearing at the all India Entrance Examination would cause considerable hardship and inconvenience. Admissions to post-graduate courses for the academic year commencing in 1987 may therefore be given on the basis that our judgment dated 22nd June 1984 does not govern such admissions. But an All India Entrance Examination would have to be held in 1987 for the students who would be passing MBBS Examination in the end of 1986 and who would be completing their compulsory rotating internship/practical training in the end of 1987 and seeking admission to'Post-graduate courses for the academic year commencing 1988. We must of course make it clear that it would be open to a student to appeal at the All India Entrance Examination even after he has completed his compulsory rotating internship/practical training, arid he would be entitled to compete for admission to Post-graduate Courses for the academic year immediately following the completion of his internship or practical training. We would also like to add that though we have prescribed this programme for holding the All India Entrance Examination for admission to post-graduate courses, if any difficulty is found in following this programme, it would ,be open to the Government of India to alter it in such manner as it thinks fit after consultation with the Ail India Institute of Medical Sciences and Medical Council of India. We are leaving a certain measure of latitude to the Government of India because it is possible that some difficulties may be encountered in implementation of this programme which we have not been able to anticipate and foresee."
16. We have quoted in extenso from the aforesaid judgment in Dinesh Kumar's case (supra) as great emphasis has been laid by the learned counsel for the petitioner on the obsqrvations that those who have not completed compulsory rotating internship but are in the process of doing so, should also be considered eligible for taking the examination. We must point out that the above quoted observations have to be read in the context of the case before the Supreme Court. The observations clearly related to the Scheme of the Examination which was directed to be conducted by the Supreme Court for filing in All India Quota of Post-graduate Medical Courses. The observations do not have the mandatory character. It is for this reason that the Supreme Court left latitude to the Government of India to alter the Scheme in such manner as it thought fit in consultation with AH India Institute of Medical Sciences and Medical Council of India. The Supreme Court itself was aware of difficulties which might be encountered in implementation of the Scheme. The observations cannot therefore be taken as true and binding in each and every situation. We will have to judge this case in the set of circumstances of this case. Again, the general principle that the cut off date for deciding eligibility must have, nexus with the purpose of admission cannot be disputed but the question as to whether a particular cut off date would be arbitrary in the circumstances of that case will have to be decided in each and every case in the circumstances of that particular case.
17. To decide whether in the peculiar circumstances of this case, for the examination to beheld in 1993 cut-off date of 31-12-92 will have proper nexus with the object of selection or not and would therefore be valid or not, we will have to consider the background in which the Examination for the year 1992 was held in the year 1993. The State Government notified Pre-P.G. Rules in the official Gazette on 2nd April, 1992. Immediately, after the publication of the Rules, the State Government through the Deans of the Colleges concerned invited applications for filing in the seats in the post-graduate courses in the medical colleges and the Dental College of the State. Immediately on the publication of the aforesaid notification and on the applications for filling in the seats in postgraduate courses being invited, candidates who had completed their house-jobs or were about to complete the same or were waiting for allotment of house-jobs raised an objection that the Pre-P.G. Examination had to start in the year 1993 and not in the year 1992 and, therefore, Pre-P.G. seats in the year 1992 had to be distributed under the old Rules i.e. without the Pre-P.G. Examination. It appears that this stand was finding favour with the State Government or at least some candidates desirous of getting the Pre-P.G. Examination conducted in the year 1992 itself, came to apprehend such a situation and one of them Dr. Manish Rai filed M.P. No. 1028/92 in the Indore Bench of Madhya Pradesh High Court praying for a restraint order on the State Government not to admit any students to the M.D.S. Course in the year 1992 and subsequent years without taking a Pre-P.G. Examination for selection of candidates for admission. This case was decided on 15-7-1992 and it was held that the apprehension of the petitioner Dr. Manish Rai was unfounded because in the year 1992 admissions could be granted under the old and new Rules simultaneously, as the admissions under the old Rules had to he for the two years course after completion of the house-job, whereas the admissions through Pre-P.G. had to be granted for a three years course after completion of internship, the year of the house-job being included in the three year course itself. It was thus pointed out in the final order in Dr. Manish Rai's case (supra) that Pre-P.G. Examination for deciding admissions to three years Degree Course commencing in the year 1992 could be held in the year 1992 itself and in fact under the dictum of the Supreme Court had to be held in the year 1992 itself. Actually, a specific direction was issued so far as the M.D.S. course was concerned in Dr. Manish Rai's case (supra) directing the State Government to hold Pre-P.G Examination for admission to three years M.D.S. course to be started in the year 1992 itself within three months from the date of the order. What was decided about the M.D.S. course applied mutatis mutandis to three years M.D. and M.S. courses as well and the State was free to hold Pre-P.G. Examination for admission to three years M.D./M.S. course in the year 1992.
18. Unfortunately, Dr. Manish Rai's case (supra) was not the only case on the point filed in the High Court. It appears that some other cases raising similar points were also filed before the High Court at Jabalpur and in the Benches. One such case M.P. No. 426/92, Dr. Shaini Choubey v. State of Madhya Pradesh was pending at Jabalpur. On 21-10-1992, the Division Bench hearing that case referred the case to a Full Bench for a decision on what relief could be granted under the circumstances. On 21-1-1993, the Full Bench decided the case and it was finally decided that the Pre-P.G. could be held in the year 1992 also and in the year 1993 in any case, admissions had to be given to a three years post-graduae degree course only through an Entrance Examination. Paragraphs 2 and 3 of the Full Bench Judgment bring out the entire picture and, therefore are reproduced here-under in toto :--
"2. The petitioners are of 1986 batch have passed their M.B.B.S. Examination and have also completed their internship during the year 1992. By filing this petition and similar other petitions the petitioners and other challenged the enforcement of Madhya Pradesh Public Health Medical (MD/MS) and Dental(MDS) Postgraduate Entrance Examination Rules, 1992 (in short, the "New Rules") with effect from the year 1992 and for restraining the respondents from holding the Entrance Test under the New Rules in the month of April, 1992 as notified by the Government by its letter dated 31-12-1991 filed as Annexure P-2. It may be mentioned that the Entrance Test in April, 1992 could not be held in the month of April 1992 as notified by the Government because of ad interim writ granted by this Court in this case un 6-2-1992. After this petition was decided on 21-10-1992, it appears that the respondents have taken steps now to hold the Entrance Test under the New Rules in the'year 1993."
"3. It would appear from the said facts that the situation that arose and that has been pointed out by the Division Bench in para graph 8 of its order was due to unwillingness of the petitioners to face the Entrance Test under the New Rules and the ad interim writ granted in their favour by the Court on 6-2- 1992. In the light of these facts and after hearing the learned counsel for the parties, we are of the view that it would not be just and proper to allow admissions to the post graduation medical courses during the year 1993 simultaneously under the old Rules and under the New Rules. Ordinarily the Entrance Test could have been held in the year 1992 as also in the year 1993 under the New Rules by the respondents but because of the unwilling ness of the petitioners to face such Entrance Test and because of the ad interim writ granted by this court at .their instance, the Test could not be held in the year 1992 and it is being held in the year 1993. Under these circumstances, we are of the view that the petitioners are not entitled to be considered for admissions to the P.O. Course during the year 1993 under the old Rules, particularly when such a course has been abolished and 3 year course without any housemahship has been decided to be followed from the year 1993 in accordance with the directions of the Supreme Court in the case of Dinesh Kumar v. Motilal Nehru Medical Cpllege, (1987) 4 SCC 459."
19. In the aforesaid circumstances, it is clear that admissions for a three year degree course in the year 1992 also had to be given through a Pre-P.G. Entrance Test alone. It was not possible to hold the Pre-P.G. Examination for grant of admission to three years Pre-P.G. course without or including a house-job only because of litigation. If, the State Government was allowed to take the Examination as proposed by it, Pre-P. G. Examination for admission to three years P.G. course would have been taken in the year 1992 itself. In such ari examination candidates completing their internship up to. 31-12-1992 only would have been eligible and candidates completing internship beyond 31-12-1992 would not have been eligible. It is also clear that this particular Examination which was taken in the year 1993 was the Examination meant for the year 1992. In these circumstances, the cut-off date of 31-12-1992 for deciding eligiblity on the ground of completion of internship on that day had definitely proper nexus with the object of selection i.e. to select candidates for three year Pre-P,G. courses in Medical Colleges of the State for the year 1992. In these peculiar circumstances of the case the claim of the petitioners who have completed the internship after 31-12-1992 must fail. The fortuitous circumstance delaying the Examination or the circumstances created by litigating candidates cannot come to the rescue of those who could have not been eligible for taking the Examination. If the Examinations were held as per the schedule. We are therefore of the opinion that in the circumstances of this case prescribing 31-12-1992 as the cut-off date for deciding eligibility on the basis of completion of internship before 31-12-1992 is not arbitrary and is perfectly valid.
20. There is more weighty reason for denying the petitioners the relief they seek. In the application form itself a declaration has been made by the candidates including the petitioners in the following terms : --
Declaration "A13 I have filled this application form after studying and understanding the contents of the rule book. I have examined my eligibility for admissions as per the rule book and it will be my responsibility to establish the same when required. I hereby solemnly and sincerely affirm that the statements made and information furnished by me in the Application Form, Computer Form and the Attendance Sheet are true and correct. I have not withheld any information. Should it however be found that any information furnished therein is fraudulent, incorrect or untrue in material particulars. I realise that I am liable to criminal prosecution and I also agree to forego my seat in the college. Further that the selection and admission to the course is liable to be cancelled. I agree to abide by the Rules and Regulations governing this examination and as contained in the Rule Book."
21. As already pointed but Rule 3-2-6 contained in the Rule Book (book let Pre-P.G. 1992) required as an eligiblity criterion completion of compulsory rotating internship on or before 31-12-1992. Obviously, therefore the declaration on the basis of which the Petitioners became candidates for the Examination was incorrect and it was their responsibility to establish their eligibility. Instead of establishing their eligibility as per the Rules, the petitioners in these cases are trying to find fault with the Rules themselves. They cannot be allowed to do so on the grounds of equity as they cannot be said to have come to the Court with clean hands. They became candidates at the Examination by making incorrect declarations which may even be termed as false declarations and after having played the game they are demanding change in the Rules to suit their convenience and self interest. Such a conduct should be enough to disentitle the petitioners to any relief, even if, this Court had found them eligible for any relief at all.
22. Moreover, if we allow the petitioners to circumvent the Rules in this manner by finding fault with them after the event, what happens to those who did not have the audacity to swear false declaration about their eligibility and to declare brazenly that they had checked their eligibility and they were eligible for taking the Examination and were ready to prove their eligibility at any future date? All such candidates will stand to loose and will get punishment for their honestly accepting that they were not eligible according to Rules to take the Examination. If, the Rules had been challenged in time i.e. before the Examination it was understandable. In that event, the reasonableness of the cut-off date being put at 31-12-1992 would have been decided for all concerned and if, the court decided that the cut-off date was not justified, it could be shifted to any further date for all the candidates similarly situated. We cannot allow the petitioners to steal a march over other candidates who like them have completed their internship after 31-12-1992 but who like normal law abiding citizens were candid enough to accept that under the Rules they were not eligible to take the Examination. In the circumstances of the case, it would not be just and proper to invalidate the rule requiring the cut-off date to be 31-12-1992, quash the Examination held on the basis of such a cut-off date and to direct holding of a fresh Examination in which all candidates who acquired eligibility qualifications on the date of the commencement of course to compete for admissions to the courses. Already we are in a situation when 1992 Examination was held in the year 1993 and if we embark on such an exercise, the Examination may as well go into the year 1994. We must cry halt at some stage and say enough is enough.
23. Two other objections were raised to the cut-off date for eligibility being fixed as 3,1-12-1992. It was contended that the original rules as published in the gazette dated 2nd April, 1992 did not fix 31-12-1992 as the cutoff date for testing eligibility of candidates. The original rule required eligibility qualifications of "compulsory rotating internship to be acquired on or before the competitive admission test is held." By an amendment in the rules vide notification dated 25th/30th January 1993 published in the Madhya Pradesh Gazettee Extraordinary dated 30th January 1993, the rule was amended by providing that the eligibility qualification of completion of compulsory rotating internship has to be acquired "on or before 31-12-1992 or as announced in subsequent years in which the competitive admission test is held." It was vehemently argued by Shri K. G. Mahe-shwari, the learned counsel appearing for Dr. Dharmendra in M.P. No. 1125/93 that this amending notification issued in the name of the Governor of Madhya Pradesh was a nullity as there was no Governor in the State who could represent the State Government and the President of India with the aid and advice of the Council of Ministers of the Central Government only was empowered the function as executive head of the State. It was contended that after dissolution of the State Legislature Assembly on 15-12-1992 by the President of India under Article 356 of the Constitution of India, the Governor had no jurisdiction to modify or amend the rules as there was no Council of Ministers to advise him.
24. Shri M. G. Upadhyaya, the learned Deputy Advocate General appearing for the State has raised an objection to the considera- , tion of the aforesaid objection of Shri K. G. Maheshwari on the ground that the Supreme Cour has directed that all the matters pertaining to validity of Presidential proclamation under Article 356 and matters arising out of and incidental thereto shall be heard by the Supreme Court alone in view of the pendency of an appeal against the decision of the Madhya Pradesh High Court declaring the proclamation under Article 356 invalid. According to us there is no need for us to go into these larger questions because in our opinion even the unamended notification did not prohibit fixing of 31-12-1992 as the cut-off date for deciding eligibility of the candidates. Even if, no specific cut-off date was provided by the original rules, it was open for the State Government and it is open for us, to interpret the rules in a manner which will further the object of the rules. When the original rules required completion of compulsory rotating internship "on or before the competitive admission test is held", it is obvious that a cut-off date was left by the rules to be fixed by the State Government. That is why between the words "on or before" and the words "the competitive admission test is held" blank space is left. It is true that there is some ambiguity in the provision. If, it was intended that the cut-off date should be the date of commencement of the competitive admission test, words "on or" would not have been used and a gap would not have been left between the words'"on or before" and the words "the competitive admission test is held". The provision will have to be, therefore, reasonably read as permitting fixing of any cut-off date by the State Government but the date should be before the competitive admission test is held. The original rule itself, therefore, per-mists fixing of any date prior to the commencement of the admission test. This objection therefore, has no force and it was perfectly valid under the rules for the State Government to fix 31-12-1992 as the cut-off date for completion of compulsory rotating; internship of course date fixed could be challenged on the ground of being arbitrary and unreasonable for having no nexus with the purpose and that objection has been raised in the case and has already been decided by us is the foregoing paragraphs of this judgment.
25. The second objection to the validity of 31-12-1992 being kept as the cut-off date for completion of compulsory rotating internship was that it offended the principle of uniformity which according to the Petitioners, had to be maintained on All India basis. Several documents have been filed to show that every where in India the cut-off date for completion of compulsory rotating internship is fixed on the basis of the date of commencement of the course and completion of internship on the eve of commencement of the course is required. We have already seen that the Examination was being held for the year 1992 and only because of peculiar circumstances of the case not within the control of those who were eligible to appear at the test in the year 1992, the test could not be held in that year. The general rule of requiring internship to be completed on the eve of commencement of the course cannot be applied in this case. Exceptional situation has to be met by exceptional provisions. There cannot be an ideal answer to an extraordinary situation. Ideal provision could only be for an deal situation, If the Examination had been held in the year 1992 and the course had commenced in the year 1992, cut-off date for compulsory rotating internship could and should have been the date of commencement of the course. Had that been possible, the Petitioners and their life, would have had no chance of even filling in the application forms for taking the test because they would not have been eligible even according to the principles on which they are now relying i.e. cut-off date for eligibility should be the date of commencement of the course.
26. That takes us to the challege to reduction in the qualifying percentage of marks from 50% to 42% in the General Category and from 50% to 24% in the Reserved Category. Actually, we need not go into all this having held that the petitioners were not eligible to take the Pre-P.G. Test itself. When they are not eligible, they are the least affected by whosoever else may be get admission. Even otherwise, the petitioners having secured more than 50% marks in the written test, they would not be affected even if, marks are relaxed to fill in the remaining seats. Even on merits the contention that the State Government cannot, under any circumstances, relax the qualifying percentage of marks is not correct. A decision of Supreme Court in Ombir Singh v. State of U.P., AIR 1993 SC 975 was cited by Shri A. M. Mathur in support of his contention. This was a case in which the petitioners who had secured less than the qualifying percentage of marks had prayed for a writ of mandamus directing the State Government to relax the qualifying percentage of marks. In this decision itself, in Paragraph 8 after having held that fixing of minimum percentage of marks as qualifying marks was valid, the Supreme Court recommended to the State Government to take suitable steps for postgraduate course and such a step would be in the larger public interest. This is a clear indication that the State Government had power to relax the minimum qualifying percentage of marks. The next case cited was State of Uttar Pradesh v. Dr. Anupam Gupta, AIR 1992 SC 932 : (1992 AIR SCW 746). In this case also validity of fixing of minimum qualifying percentage of marks was in question and not the validity of any relaxation given below the initial fixed qualifying percentage of marks. This ruling is therefore of no help to the petitioner.
27. On the other hand Shri G. M. Chaphekar, the learned counsel for the Interveners relied on a State of Madhya Pradesh v. Kumari Nivedita Jain, AIR 1981 SC 2045) submitted that though it is for the Medical Council to lay down the minimum education qualification required for a student seeking admission into a Medical College, it is not for it to prescribe the mode of selection of candidates from amongst eligible candidates. In Paragraph 18 of the aforesaid judgment the Court observed as follows :--
"All the candidates who are eligible for admission into Medical Colleges or Institutions for getting themselves qualified as medical practitioners are entitled to seek admission into a Medical College or Institution. As to how the selection has to be made out of the eligible candidates for admission into the Medical College is a matter which has necessary to depend on circumstances and conditions prevailing in particular States ....." "As the number of candidates seeking admission to Medical Colleges largely exceed the number of vacancies available to such candidates for admission, some kind of procedure has to be evolved for such selection. The process of selection of candidates for admission to a Medical College out of the candidates eligible for admission for filling up the limited vacancies has no real bearing on the question of eligibility or qualification for admission or on the standard of medical education."
28. In the case before us when even after granting admission to all the students who had secured 50% or more marks in the Pre-P. G. Examination, if certain vacancies remain to be filled and if, for filling of such vacancies the State Government resort to relaxation of minimum qualifying percentage of marks, it cannot be said that such an action is illegal or arbitrary. After all, all the candidates eligible for taking the Pre-P. G. Examination were eligible for admission to a post-graduate degree or diploma course in a Medical College in the State. They cannot be denied admission solely on the ground that they do not hold the qualification of having obtained minimuim qualifying percentage of marks set out in the Pre-P. G. Rules over and above the eligibility qualification for admission to a post graduate course prescribed by the Medical Council of India or the University to which the different Medical Colleges in the State are affiliated especially when the State is willing to grant them admission by relaxing rules. A competitive Entrance Test becomes necessary only because the number of eligible candidates for admission to post-graduate courses in Medical Colleges far exceeds the number of vacancies in the post-graduate course. The fixing of minimum qualifying percentage of marks in a common entrance test has therefore no nexus with the object of selection. In a given case it would amount to creating an extra hurdle in the way of a candidate who has already acquired eligibility for admission in a post-graduate course, Objection of holding a common Entrance Test is not to test the knowledge of a candidate or his suitability for admission to a post-graduate course, but to select candidates equal in number to the vacancies existing in the course from amongst a vast number of eligible candidates. It is the comparative --merit of the candidates which is judged by any such common test and not the merit of the candidate in islolation. In practice therefore, admission may close one year at 80% and in some other year it may close on 40%, depending upon the general standard of the candidates, the nature of question papers set, the standard of evaluation of answer sheets etc. If, the State Government initially made a provision for minimum qualifying percentage of marks in the Rules and finding that vacancies remained to be filled because of such minimum qualifying percentage prescribed, lowered the same to enable the vacancies to be filled, it cannot be said that its action was arbitrary or illegal.
29. So far as the reduction of minimum qualifying percentage of marks for the SC/ST candidates the following observations in Paragraph 25 of the judgment of the Supreme Court in Nivedita Jain's case (supra) conclude the point.
"It cannot be disputed that the State must do everything possible for the upliftment of the Scheduled Castes and Scheduled Tribes and other backward communities and the State is entitled to make reservations for them in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions would make the reservation effective and would benefit the candidates belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation, taking into consideration the realities and circumstances prevailing in the State it will be open to the State to vary and modify the conditions regarding selection for admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary."
"The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes for admission into Medical Colleges cannot be said to be unreasonable and the said relaxation constitutes no violation of Article 15(1) and (2) of the Constitution. The said Relaxation also does not offend Article 14 of the Constitution. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into Medical Colleges. The relaxation is only in the rule regarding selection of candidates belonging to Schedule Castes and Scheduled Tribes categories who were otherwise qualified and eligible to seek admission into medical colleges only in relation to seats reserved for them."
30. In Aarti Gupta v. State of Punjab, AIR 1988 SC 481 the Supreme Court reaffirmed the view taken by it in Nivedita Jain's case (supra).
31. Before parting with this case, we feel duty bound to express ourselves on the problem posed before us by the petitioners concerning unnecessary loss of time of students desirous of taking post-graduate qualification occasioned by fixing of cut-off dates of eligibility on the basis of completion of compulsory rotating internship. According to the petitioners, they would now be eligible to appear at 1994 Pre-P. G. Examination and if successful would be admitted to P. G. Course which may start in mid 1994. As they have completed internship in mid 1993 they would be losing one valuable year of their career. We feel that the calendar of Pre-P. G. exams, every year has to be so fixed that it correlates and co-ordinates with the completion of M.B.B.S. course every year. If the final M.B.B.S. results are announced in a particular month every calendar year, the one year compulsory rotating internship would com-
mence immediately and would be complete in the same month next year. If the Pre-P.G. courses are scheduled to commence the very next month the M.B.B.S. results are announced, automatically, most of the candidates would be eligible to take the next Pre-P.G. without loss of time as the cut-off date for determining the eligibility on the basis of completion of internship would then synchronise with the commencement of the Pre-P.G. Course. Those who completed internship after the commencement of Pre-P. G. Course for any reason would have to wait for the next year, but, that cannot be helped. However, all this is to be considered by the State Government which owns the Medical Colleges, the Medical Council of India which supervises the Medical Education in the country and the Universities to which the Medical College's are affiliated. It is not for us to make any positive direction in this respect as they would amount to interference in the academic field which should be left to the academicians alone.
For the foregoing reasons, we find no force in the petitions. They deserves to be and are here-by dismissed. Consequently, all the interim orders passed, in these cases shall stand vacated. There shall however be no order as to costs. Security deposits, if any, in the petitions be refunded.