Patna High Court
Samir Kumar Das And Etc. Etc. vs State Of Bihar And Ors. on 22 May, 1981
Equivalent citations: AIR1982PAT66, 1981(29)BLJR578, AIR 1982 PATNA 66, (1981) PAT LJR 490, 1981 BBCJ 558, 1981 BLJR 578
ORDER
1. By a common order dated 5-5-1981, we allowed all these three applications in part, quashed the order of the Government of Bihar contained in the letter dated 3-3-1981 of the Special Secretary to Government, Health Department, a copy whereof is Annexure-'A' to the counter-affidavit filed on behalf of the Respondents in C.W.J-C. No. 403/81 and directed the respondents to fill up the vacant seats in the First Year M. B. B. S. Class of the Medical Colleges in the State of Bihar and in the First Year B. D. S. Course of Patna Dental College for the Session 1979-80 on the basis of the result of the Pre-medical and Dental Test Bihar for the aforesaid Session and of an interview held on 15-12-1980 without further delay. We now proceed to give the reasons for that order.
2. Brij Kishore Prasad is the petitioner in C. W. J. C. No. 403/81. Samir Kumar Das and Satish Chandm Gupta are the petitioners in C.W.J.C. Nos. 404/ 81 and 653/81, respectively. The State of Bihar is the Respondent No. 1 in all the applications, and Dr. R. P. Singh, Principal of the Patna Dental College and Convenor of the Board of Principals for selecting candidates for admission to the 1st year course of the M. B. B. S. and B. D. S. Course for the session 1979-80 is Respondent No. 2 in C.W.J.C. Nos. 403 and 404 of 1981 and was also Respondent No. 2 in C.W.J.C. No. 653/81. The Director of Health Services, Bihar is respondent No. 3 in C. W. J. C. No. 403 of 1981.
3. Admission of students to the First Year of the M. B. b. S. Course of the various Medical Colleges in the State of Bihar, namely, Patna Medical College, Patna, Darbhanga Medical College, Laherasarai, Rajendra Medical College, Ranchi, Bhagalour Medical College, Bhagalpur, Mahatama Gandhi Memorial Medical College, Jamshedpur, S. K. Medical College, Muzaffarpur, Nalanda Medical College, Patna Magadh Medical College, Gaya, Patliputra Medical College, Dhanbad and to the First Year B. D. S. Course of Patna Medical College, Agamkuan, Patna, is made on the basis of a combined test held for that purpose by the Board of Principals consisting of some of the Principals of the aforesaid colleges. For admission to the First Year M. B. B. S. Class of the aforesaid Pre Medical Colleges and the first year B. D. S. Class of the Dental College for the Session 1979-80. the State Government appointed a Board of Principals consisting of several Principals including Shri R. P. Singh, Principal, Patna Dental College, Patna. who was appointed as the Convenor of that Board. The Board issused a prospectus calling for applications from eligible candidates for admission to the aforesaid Courses for the Session 1979-80. Para 'A' of the Prospectus, copy whereof is Annexure-5 in C.W.J.C. No. 403/81 provided: Candidates for admission to the First Year M. B. B. S. Course and to the First Year B D. S. Course shall have to appear at a competitive test and will be selected on the basis of merit according to the results of the test. The Prospectus specifies the conditions for eligibility for the competitive test, the last date for receipt of the application forms and the documents which were required to accompany the application forms. The Prospectus provided for issue of admit card, and fixed the date of the test examination. Para 'O' of the Prospectus provides "in all matters relating to the test and admission, the decision of the Board of the Principals shall be final -- Para 'P' runs thus: "Candidates will be selected for admission strictly on the basis of merit as given (A), subject to reservations of seats as per Government rules. Para 'W' provides that in case of a candidate being selected provisionally for admission, interview letter will be sent by registered post". Para 'Y' declares "interview does not entitle a candidate for admission". 14% of seats, according to the Prospectus were reserved for Scheduled Caste, 9% for Scheduled Tribes, 10% for Backward Classes and 20% for ladies.
4. According to the averments in the petition in C.W.J.C. No. 403/81 which has not been controverted the total number of seats in the First Year M. B. B. S. Class in the various Medical Colleges aforesaid was 670 and the total number of seats in the First Year B.D.S. Course in Patna Dental College was 15. It appears all the three petitioners along with others appeared at the pre-Medical and Dental Test 1979 which was held sometime in July 1979. The first list of successful candidates was published on 13-4-1980 and the second list on 12-10-1980. It appears that even after the successful candidates of the first and second lists had been admitted to the different Medical Colleges after interview, some seats in the Medical Colleges still remained vacant. According to the supplementary affidavit filed on behalf of the petitioner in C. W. J. C. No, 403/81, the total number of seats that still remained vacant was 11 in the Patna Dental College and 37 in six of the aforesaid Medical Colleges. According to the counter-affidavit filed on behalf of the respondents in C. W. J, C. No. 403/81 which has been adopted in the other writ applications also, the number of vacant seats was about 29. According to the counter-affidavit filed on behalf of the respondents which on this point has not been controverted, these vacant seats originally belonged to the quota reserved for students belonging to the Scheduled Caste and Scheduled Tribe but were later on released by the Government for being filled up by general students.
5. It appears that to fill up these vacant seats, the Convenor of the Board of Principals issued a notice dated 4-12-1980 directing 62 of the candidates who had appeared at the test "to appear for an interview for scrutiny of documents etc. in connection with admission into First Year Class of Medical and Dental Colleges Bihar (Session 1979-80) on 15-12-1980 at 1 P. M. at I. M. A. Hall, south Gandhi Maidan, Patna". The notice required the candidates to bring the documents in original at the time of interview and stated that provisional selection and calling for interview would not entitle a candidate to admission. The 62 candidates, who were called for interview on 15-12-1980, were arranged in order of merit. Brii Kishore Prasad's position in the list was at serial 50 of the list and those of the petitioners in C. W. J. C. No. 653 of 1981 and 404/81 at serial Nos. 6 and 7, respectively. Admittedly, all the three petitioners appeared at the interview held on 15-12-1980 but the result of the interview held on 15-12-1980 was not announced in spite of representation made by the petitioners.
6. According to the petitioners, it is the public duty of the Board of Principals, and the State and the other authorities concerned to publish the result of the interview and to admit students to the remaining vacant seats in the different Medical Colleges and Patna Dental College on the basis of the admission test and the interview held and the respondents were in duty bound to publish the result of the test and interview held on 15-12-1980 and to fill up the vacant seats in the colleges on the aforesaid basis, the petitioners accordingly, have come to this Court and pray for a writ in the nature of Mandamus directing the respondents, the State of Bihar and the Principal, Patna Dental College, the Convener of the Board of Principal, who conducted the test to declare the result of the test and interview held on 15-12-1980 and pass other consequential order, namely, direct the admission of the petitioners to the vacant seats if they are eligible for admission on the basis of the result of the admission test and the interview held.
7. Cause has been shown on behalf of the respondents and a counter-affidavit on behalf of the respondent. State of Bihar, and the Convenor of the Board of Principal and the Director of Health Services has been filed in C. W. J. C. No. 403/81, supplementary affidavits and supplementary counter-affidavits have also been filed. The counter-affidavits filed in C. W. J. C. No. 403/81 have been adopted by the respondents in the other cases also. The main ground on which the prayer for the relief claimed by the petitioners has been opposed on behalf of respondents is that the determination of the claims for admission of the 62 students who were called for interview and were interviewed by the Board of principals, would have taken a long time. The Session for the aforesaid first year M. B. B. S. Course which had commenced in July, 1980, had far advanced and the 62 students who were called for interview, if intimately admitted, would not have been in a position to complete the necessary courses or attend the minimum number of classes prescribed for the first year M.B.B.S. Examination and the Government decided to stop any further admission to the First Year M. B. B. S. Class and the First year B. D. S. Course and dissolved the Board of Principal constituted for the purpose of selecting candidates for admission to the aforesaid classes for the 1979-80 session. The order of the Government stopping further admission and dissolving the Board of Principals has not been filed in this Court but the said order is mentioned in the letter dated 3-3-1981 of the Special Secretary to the Government of Bihar Health Department, ad dressed to the Advocate-General, Bihar a copy which has been annexed to the counter-affidavit of the respondents and marked Annexure-A.
8. The further case of the respondents is that the Medical Education, including the M. B. B. S. and B. D. S, Courses, is conducted under the supervision and direction of the Medical Council of India which has prescribed the course of study, the period of the courses and the conditions of eligibility to sit for the examination and if students who were not in a position to qualify themselves for the purpose of appearance at the M. B. B. S. Examination are admitted to the various colleges, the medical degree granted by the Universities to which the various colleges are affiliated may run the risk of de-recognition.
9. A rejoinder to the counter-affidavit was filed on behalf of the petitioner in C. W. J. C. No. 403 of 1981. According to the rejoinder the plea of the Government that the students were called for interview on 15-12-1980 could not be admitted because if admitted they could not have completed the course etc. was a mere pretence and the action of the Government taken at the instance of the Health Minister was completely arbitrary and discriminatory because some students were admitted to the different Medical Colleges in the State in October and December 1980 and even in January, 1981.
10. The first Question for determination is if there is any public duty cast on the State of Bihar and the respondent convenor of the Board of Principals to decide who are the persons eligible to be admitted and to fill up all the vacant seats in the different medical colleges of Bihar and also in the Patna Dental College for which applications were invited and admission test was held. It is well settled that an applicant for admission has a right to get his application considered in accordance with law. But, as pointed out by A. B. N. Sinha, J., speaking for a Bench of this Court in Miss Zeenath Tej v. Principal of the Prince of Wales Medical College, Patna (AIR 1971 Pat 43) "this right, however, cannot arise unless the following conditions are satisfied: (i) The applicant concerned must have actually applied for admission into an educational institution (ii) there must be vacancies in the class into which admission is sought for and, further there must be an obligation on the part of the authorities to fill up these vacancies". There is no doubt that all the petitioners had actually applied for admission into the different medical colleges. There is also no doubt that a certain number of vacancies in those colleges exist. Though there is dispute about the exact number of vacancies even according to the respondents there are about 29 vacancies. The only question for decision in this connexion, therefore, is whether there is a duty or obligation imposed on the respondents, the authorities concerned, to fill up all the vacant seats in the medical colleges of the State of Bihar.
11. All the aforesaid medical Colleges and the Patna Dental College are institutions maintained by or least managed and controlled by the State Government, and are therefore instrumentalities of the State and, therefore, State within the meaning of the expression as used in Article 12 and also Part IV of the Constitution. The right to receive professional education being a pre-requisite for carrying on the medical profession has been held by the Delhi High Court to be a part of the fundamental right under Article 19 (1) (f) of the Constitution, vide the decision reported in AIR 1979 Delhi 87. Even if we do not go to that extent, there can be no doubt, that according to the directive principles of policy contained in Part IV of the Constitution, it is duty of the State to make provision for medical education. Article 41 of the Constitution commands: "The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education. .....". It is obvious that the right to education in Article 41 includes the right to medical education. And the duty of effectively securing the aforesaid right to medical education, establishment and maintenance of medical colleges or institutions imparting medical education is not enough; provision must also be made for the admission to those institutions of people suitable for admission to those courses, selected on some reasonable principle. The duty of making effective provision for securing the right to education in Article 41, therefore, include the duty of admitting students to the available seats in the various medical colleges established or maintained or controlled by the State.
12. It is true that the duty imposed upon the State by Article 41 which forms part of the directive principles is not enforceable by any Court. But once the State, either by legislative or administrative action, provides facilities for medical education in performance of the duty imposed upon it by Article 41, it has the legal duty, subject to availability of the seats in the institutions, to make the right to medical education available to every eligible person desirous of exercising the right, selected, in case of limited number of seats, on some reasonable principle. It cannot arbitrarily refuse to fill un the seats in the various medical institutions and thus deny the opportunity to receive the medical education to a person desirous of and eligible for the same. If it does so, it would be violating the fundamental right to equality guaranteed to that person by Article 14 of the Constitution. It is, as was pointed out by Bhagwati, J., speaking for the Supreme Court in Aiay Hasia v. Khalid Mutib Sehravardi (AIR 1981 SC 487). "well settled that what Article 14 strikes at is arbitrariness, because an action that is arbitrary, must necessarily involve negation of equality" (at page 499 of the report). It may, therefore, be reasonably concluded that when there are a number of seats in the medical college established, maintained or controlled by the State, a public duty is imposed upon the State to fill up all the available seats in those medical colleges by persons seeking admission thereto who are eligible for admission and have been, in case of com-petition for the seats, selected on some rational principle.
12-A, Further, it must be remember-ed that the establishment and maintenance of medical and Dental Colleges involves enormous investment and the creation of the infrastructure for medical education is a very costly affair. And, it is well-known that medical facilities in this country and. more so in this State, are poor and the number of trained medical personnel grossly inadequate and, therefore, the need of the people for trained medical personnel is clear and urgent. In the circumstances, it will be completely contrary to reason to assume that the State is under no duty to fill up all the seats in the Medical Colleges, the creation and maintenance of which has involved huge expenditure and which if filled would produce trained medical personnel who are badly needed. It is in the light of these general considerations that we proceed to examine the provisions of the Prospectus which regulate the admission.
13. We have already set out the relevant provisions of the Prospectus. It is manifest that the Prospectus required candidates eligible for admission to the First Year M. B. B. S. and B. D. S. Classes to file applications and to appear at the competitive test and, subject to the reservation in favour of certain classes of candidates, lays down--vide paragraph 'P' that "Candidates will be selected for admission strictly on the basis of merit" determined in accordance with the result of the competitive test. When paragraph 'P' of the Prospectus is construed in the light Of the considerations mentioned above, the express provision that candidates "will be selected for admission strictly on the basis of merit" may well be interpreted to contain an implicit provision that the candidates who are eligible for admission on the basis of the merit shall not be denied admission to the seats available in the colleges. The Prospectus, therefore, considered in the light of the consideration referred to above, clearly imposed a duty on the State to fill up all available scats which are not reserved for a particular category of students, by eligible candidates selected by the Board of Principals, whose decision in all matters relating to the test and the admission is made final--vide Paragraph 'O'. This duty is in the nature of a public duty the performance of which can be compelled by a writ in the nature of mandamus.
14. I am fortified in this conclusion by the decision in G. P. Hemantha Ku-mar v. Selection Committee, for Admission to Govt. Medical College, Bangalore (AIR 1981 Kant 22) in which relying on earlier decisions and the relevant rules for selection to the Medical Course, it was held by a learned single Judge of the Karnataka High Court that "if for any reason a seat had become vacant within the prescribed quota and that seat could be filled up by another candidate eligible for that seat, then the same could not be denied on any ground whatsoever as Medical Education being very important, no seat in the prescribed quota should go waste". I may also state that in Zeenath Tej's case (AIR 1971 Pat 43) (supra) also, the Bench of this Court on a consideration of the relevant rules and the ordinances held that there was an obligation on the authorities of the Patna Universities to fill up all the casual vacancies during the session which might arise in the Prince of Wales Medical College. Patna, an institution maintained and controlled by the Patna University.
15. It was argued by the learned Advocate General appearing for respondents that none of the petitioners were entitled to be selected for admission on the basis of merit against the general seats and therefore, they had no legal right to be admitted or even considered for admission to the vacant seats which were reserved for, candidates belonging to Scheduled Castes and Scheduled Tribes. In our opinion, if as in this case, the Government has taken a decision to dereserve some seats which were originally reserved for candidates belonging to the Scheduled Castes and the Scheduled Tribes and the reserved seats are thrown open for admission by students belonging to the general category, the dereserved seats stand on the same footing as other general seats, and a candidate has the game right in respect of those seats as he has in respect of the seats which were general seats from the very beginning. And, if he was entitled to be considered for admission to the original general seats, then he is equally entitled to be considered for admission to the dereserved seats and to be admitted, if selected against those seats. The petitioners, therefore, have a right to be considered for admission to the seats which are still vacant in the various Medical Colleges and Patna Dental Medical Colleges, unless there are any compelling circumstances which would dissuade this Court to refrain from directing the State Govt. to carry out its duty of filling up the vacant seats in the aforesaid colleges and considering the case of the petitioners for admission to those vacant seats.
16. One of the reasons given by the respondents for not filling up the vacant seats is that evaluation of the respective merits of the 62 candidates who were called for interview on 15-12-1980 would have been a time consuming process and could not have been completed within a reasonable time after the interview. In Paragraph '6' of the counter-affidavit it is stated that "the claims of all the 62 candidates who had all obtained 80 marks were to be scrutinised in serial according to merit for which their records of other examination etc. and relevant papers have to be examined". This plea is clearly untenable because the relative merits of all the 62 students who were called for interview held on 15-12-1980 had already been assessed by the Board of Principals. This is clear from the notice dt. 4-12-1980, copy whereof is Annexure-4 to the supplementary-affidavit of the petition in C. W. J. C. No. 403/81, issued to the 62 candidates under the signature of respondent No. 2, the Convenor of the Board of Principals. The names of the 62 candidates who had been called for interview is arranged serially in order of merit in the list of candidates called for interview on 15-12-1980 which is appended to that notice. As I have stated, in the aforesaid merit list, the petitioners stand at serial Nos. 6, 7 and 50. Though a reference to the supplementary-affidavit has been made in the counter-affidavit filed on behalf of the respondents it has not been specifically denied therein that what is appended to the notice (Annexure-4) is the merit list of candidates called for interview, that is to say, the names of candidates called for interview had been arranged in order of merit, thus the merit of the candidates called for interview on 15-12-1980 had already been assessed. Further, it is clear from the notice (Annexure-4) that the candidates were directed to appear for interview "for scrutiny of documents etc. in connection with admission" and the candidates were required to bring documents in original at the time of the interview. The main purpose of the interview, therefore, was not assessment of the respective merits of the candidates called for interview but the verification of the certificates etc. submitted with reference to their originals.
17. The learned Advocate General appearing for the respondents referred to the provisions of Paragraph 'Y' of Prospectus and on that basis contended that the fact that the petitioners were called for interview did not entitle them to admission. That is so. But what the petitioners are seeking to enforce is not their right to admission but their right to have their applications for admission considered on merits in accordance with law. aS was pointed out by Narasimham C. J., speaking for a Full Bench of this Court in Umesh Chandra Sinha v. V. N. Singh (AIR 1968 Pat 3), "the right of a candidate for due consideration of his application for admission on the basis of valid law is distinct from the right of another candidate to be admitted on the basis of such law. The two rights are distinct and each of them is justiciable", (at page 7 of the report).
18. The learned Advocate General next argued that the decision of the State Government not to fill up the vacant seats in the Medical Colleges on the basis of the interview held on 15-12-1980 was, justified and legal because the students who would have been admitted, thereafter, would not have been able to complete the courses of study or be eligible to appear at the examination. On the other hand, it is argued on behalf of the petitioners that the question whether the petitioners, if admitted, would be able to complete the course and qualify themselves to appear at Examination held for students admitted earlier in the 1979-80 session is completely irrelevant for what the petitioners are seeking to enforce is not their right to appear at the examination but their right to be considered for admission to those classes. The learned counsel for all the three petitioners stated that all the petitioners were prepared to take all the risks involved in securing admission at such a belated stage.
19. The learned Advocate General is right to this extent that as the session commenced in July, 1980, the petitioners, if admitted on the basis of the interview held on 15 December, 1980 would not, in the normal course, be able to complete their courses and be eligible to sit at the regular examination held for the students of 1979-80 session. The Indian Medical Council (hereinafter called "the Council'), constituted under the Indian Medical Council Act, 1956, (hereinafter called 'the Act') has in its Recommendations on Undergraduate Medical Education adopted by the Medical Council of India in April, 1977 laid down that a student admitted to the Medical Curriculum "shall undergo a period of certified study extending over 4 1/2 academic years from the date of commencement of his study for the subjects" and that "The first 18 months shall be occupied in the study of the Phase I subjects and no student shall be permitted to join Phase II group of subjects until he has passed in all the phase I subjects"--vide Paragraph III of the Recommendations. Even though it has not been shown that, these recommendations have been incorporated in regulations framed in exercise of the power conferred on the Council by Section 32 of the Act, still no Medical institution in India can afford to permit students who have not completed the course of studies in the manner recommended by the Council to appear at a Medical examination. Under Section 19 of the Act, the Council has the power to recommend to the Central Government that the courses of study and examination to be undergone in any University or a medical institution in India in order to obtain a recognised medical qualification "are not such as to secure to persons holding such qualification the knowledge and skill requisite for the efficient practice of medicine" and on the basis of such recommendation, which will generally be accepted, the Central Government may, after following the procedure prescribed, derecognise the medical qualification granted by that institution after a specific date.
20. But the learned counsel for the petitioners are right in contending that the fact that the petitioners, if admitted, would not be eligible for appearing at the regular examination is irrelevant for the purposes of these cases. In the Full Bench Case of Umesh Chandra Sinha (AIR 1968 Pat 3) (supra) the claim of the petitioner of that case for consideration of his application for admission to the First Year M. B. B. S. class of the Patna Medical College was opposed by the learned Advocate General for the respondent on the ground that if the petitioner ultimately secured admission, he would not be able to complete the minimum percentage of attendance required by the rules of the University and that, consequently, he was not likely to be sent up for the examination. The argument was rejected and the Full Bench of this Court by its order passed On 10-4-1967 directed the admission of the petitioner, though the examination for the 1st year M. B. B. S. Course was to be held on 10-5-67. The reasons for rejecting this contention were seated thus: "At this stage we are not concerned with whether the petitioner will be sent up for the examination or else whether the failure to secure the minimum attendance will be condoned (if permissible) in view of the fact that the delay was due to circumstances beyond the control of the petitioner. These are matters to be dealt with by the authorities concerned in accordance with the rules and regulations in force in the University. The petitioner is prepared to take all the risks involved in securing admission at such a belated stage. Once we hold that the offending provisions are unconstitutional, we should not deny him the appropriate relief merely because some other consequence may ensue later on", (at page 11 of the report). In that case, the validity of certain provisions of an Ordinance governing the admission to the medical institution concerned was impugned and it was asserted that if those provisions were ignored, the petitioners had preferential claim for admission over those who had been admitted. On a parity of reasoning, if we hold, as we have done that the State Government and the other authorities are bound to fill up the vacant seats, and to consider the application of the petitioners for those vacant seats and admit them if they are entitled to admission We cannot deny the petitioners "the appropriate relief merely because some other consequence may ensue later on". It must be pointed out that for the late selection whoever else may be responsible, the petitioners are not and they cannot be blamed at all.
21. We may also refer to the decision in Anitha Chandraiah v. Selection Committee for M. B. B. S. ((1981) 1 Kant LJ 304): (AIR 1981 NOC 217) in which the refusal to admit the petitioners of that case who were selected for admission to the concerned Medical College was supported on the ground that the petitioners had sought admission after the admission to the College had closed. This ground was negatived for the reason". That for the late selection ..... the petitioners cannot be blamed" and having been selected on merit for admission and being prepared to join college at his own risk, the petitioners could not be denied admission on the ground that admission to the College had closed. And the Karnataka High Court issued a writ in nature of mandamus directing the admission of the petitioner to the 1st year M. B. B.S. Course.
22. Further, according to the averments in the supplementary-affidavit filed on behalf of the petitioners in C. W. J. C, No. 403/81, several students were admitted to the first year M. B. B. S. course in the various medical colleges in December, 1980 and even in January and February 1981. According to this supplementary-affidavit filed on 14-4-1981, Pradip Kumar Agrawal was admitted in the Magadh Medical College, Gaya, on 17-12-1980, and Rajesh Nandan Sahay and Satish Chandra Prasad were admitted to the same college on 16-1-1981 and 2-1-1981, respectively, and Sanjeeb Kumar was admitted in the Patliputra Medical College, Dhanbad on 3-1-1981. According to the another supplementary affidavit, admission to the first year M. B. B. S. class in M. G. M. College, Jamshedpur of Syed Mobarak Ahmad was made on 4-2-1981 and that of Miss Rita Jha on 11-2-1981. These facts have not been controverted on behalf of the State though a counter-affidavit in rejoinder was filed on behalf of the respondents several days later, i. e. on 27-4-1981. Prima facie. in refusing to fill up the vacant seats on the ground of delay in admission, the respondents are making unfair discrimination against the petitioners,
23. The learned Advocate General also attempted to argue that if admissions are made at such a late (stage?) in the Medical Colleges, the medical degrees granted by the Universities of Bihar were likely to be derecognised by the Central Government on the recommendation of the Indian Medical Council because the admissions would be in contravention of the recommendations of the Medical Council. In our opinion, this argument is completely untenable. Our attention has not been drawn to any provision in the Act or to any regulation made by the Indian Medical Council or even to any recommendation of the Medical Council to the effect that admissions to the first year M. B. B. S. Course could not be made beyond a certain date. Reference in this connection has been made by the learned Advocate General only to the Recommendations of the Indian Medical Council aforesaid to the effect that every student shall undergo the prescribed period of certified study and that the first 18 months shall be occupied in the study of the phase I subjects and no students shall be permitted to join the Phase II group of subjects, until he has passed in all the phase I subjects. The prohibition aforesaid is not against admission of the students to the first year M. B. B. S. course but against their being permitted to join Phase II of subjects without studying Phase I subjects for 18 months. By admitting students at a late stage, the college would not contravene any provision of paragraph 'I' of the Recommendation aforesaid. The provisions regulating admission to the Medical course are contained in paragraphs '1' and '2' of the aforesaid Recommendations and it has not been argued, and in our opinion rightly, that admission of the petitioners on the basis of the admission test for the determination of merit and interview would infringe any of those provisions. We may also note that the period of 18 months of study which according to Paragraph III (3) of the Recommendation aforesaid of the Council, shall be occupied in study of Phase I subject does not, as stated in the Recommendation of the inter-University and Board of Medical Regulation Committee in its meeting held on 20-9-1980. The recommendation is incorporated in the letter of the Deputy Secretary to the inter-University Board, a copy whereof is annexed as Annexure-8 to the reply to the counter-affidavit filed on behalf of the petitioner in C. W. J. C. No. 403/81 "apply to individual students, but it applies to the classes as a whole and is to be counted with effect from the date the classes commenced irrespective of when ("whom" is obviously mistake for whom) any individual student joins the classes". As the classes commenced in July, there will be no breach committed by the Colleges of this provision of the Recommendation aforesaid. This argument of the learned Advocate General must, therefore, be rejected.
24. The only other argument of the learned Advocate General which remains to be considered is that these petitions should be dismissed as the relief claimed, even if granted, would be futile. It is pointed out that if the petitioners are directed to be admitted to the various medical colleges and the Patna Dental College for the first year M. B. B. S. course or B. D. S. course for the Session 1979-80 how, they would not be in a position to complete the course of study Or the required percentage of attendance and would be ineligible to sit at the examination and, therefore, their admission to the first year course for the 1979-80 session would serve no useful purpose. This argument ignores that though they may not be eligible to sit at the first examination held for the students of the first year M. B. B. S. class for the 1979-80 session, the petitioner may become eligible to sit at subsequent examinations. Students who are not able to complete the requisite percentage of attendance and, therefore, are not permitted to appear at an examination do later on become eligible to sit at a subsequent examination. It must be remembered that it is difficult to secure admission in a medical college and the admission is not valueless even if the candidate admitted may not be in a position to complete the course within the minimum permissible period. If admitted, he would have a chance to complete the course and to qualify for a later examination. The application, therefore, cannot be rejected on the ground that it has become futile.
25. These are the reasons for the order passed by us in all the three applications on 5-5-1981.