Jammu & Kashmir High Court - Srinagar Bench
The Caveat Petition Nos. 580/2015 And ... vs Gopal D.Tirthani & Ors) Which Is ... on 7 May, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 55 of 2015 MP No. 1 of 2015 Caveat No. 580 of 2015 And LPA No. 57 of 2015 MP No. 1 of 2015 Caveat No. 570 of 2015 Dr. Nighat Ara, D/o Abdul Majid Wani, R/o Damhall Anantnag in LPA No. 55/2015 Dr. Sheikh Khalid Nissar, S/o Sheikh Nissar Ahmed, R/o Anantnag in LPA No. 55/2015 Dr. Nusrat Ara, D/o Mohammad Yaseen Baba, R/o Lakripora Nowshera, Srinagar in LPA No. 55/2015 Dr. Abdul Hamid, S/o Ghulam Ali Dar R/o Sholipora, Distt. Budgam in LPA No. 57/2015 Dr. Sabina Qayum D/o Prof. Abdul Qayoom R/oAwantipora, District Pulwama in LPA No. 57/2015 Dr. Faroz Ahmad Khan S/o Abdul Rashid Khan R/o Batmaloo, District Srinagar in LPA No. 57/2015 Dr. Tabasum, D.o Abdul Rashid Shah R/o Shopian in LPA No. 57/2015 Dr. Hina Isaq D/o Mohammad IsaqKhanday R/o Cooperative Colony Peerbagh, District Srinagar in LPA No. 57/2015 Dr. Abida D/o Habibullah Malik R/o Karan Nagar, Srinagar in LPA No. 57/2015 Dr. SupinderKour D/o Moti Singh R/o Baghat Barzulla, Srinagar in LPA No. 57/2015 State of Jammu and Kashmir, through its Chief Secretary, Civil Secretariat, Jammu/Srinagar in LPA No. 55/2015 Commissioner/Secretary to Government, Social Welfare Department, Civil Secretariat, Jammu/Srinagar in LPA No. 55/2015 Jammu and Kashmir Board of Professional Entrance Examination, through its Secretary, Baghat Barzulla, Srinagar in LPA No. 55/2015 Mehga Gandotra, Serial No. 215 of Selection List (Roll No. 110085) in LPA No. 55/2015 Rias Ahmad Bhat, Serial No. 216 of Selection List (Roll No. 21195) in LPA No. 55/2015 Syed Rayees Qadri, Serial No. 217 of Selection List (Roll No. 211329) in LPA No. 55/2015 Mona Vats, Serial No. 218 of Serial No. 218 of Selection List (Roll No. 110251) in LPA No. 55/2015 Haroon Rashid, Serial No. 219 of Selection List (Roll No. 211496) in LPA No. 55/2015 Mohammad Muzaffar, Serial No. 220 of Selection List (Roll No. 110085) in LPA No. 55/2015 Imran Nazir, Serial No. 221 (Roll No. 21189) in LPA No. 55/2015 Ganesh Kumar Serial No. 222( Roll No. 110587) in LPA No. 55/2015 Tajesvi, Serial No. 223 (Roll No. 110281) in LPA No. 55/2015 Shalini Kotwal, Serial No. 224 (Roll No. 110661) in LPA No. 55/2015 Sourav Deep, Serial No. 225( Roll No. 110437) in LPA No. 55/2015 Faheem ul Islam Serial No. 226 (Roll No. 211378) in LPA No. 55/2015 Shahid Ahmad Mir, Serial No. 227 (Roll No. 210830) in LPA No. 55/2015 Shoiabi Yousuf, Serial No. 228, (Roll NO. 211487) in LPA No. 55/2015 Showkat Amin, Serial No. 229(Roll No. 211340) in LPA No. 55/2015 Wani Owais Ahmad, Serial No. 230 (Roll No. 210837) in LPA No. 55/2015 Meena Choudhary, Serial No. 231 ( Roll No. 110564) in LPA No. 55/2015 Mudasir Ahmad Tantray, Serial No. 232 ( Roll No. 2216334) in LPA No. 55/2015 Samiullah Sami Malik, Serial No. 233 (Roll No. 221634) in LPA No. 55/2015 Madhu Balla, Serial No. 234 (Roll No. 110760) in LPA No. 55/2015 Geeta, Serial No. 235 (Roll NO. 110448) in LPA No. 55/2015 Abdul Wahid Raina, Serial No. 236 (Roll No. 211305) in LPA No. 55/2015 Rameez Raja Najar, Serial No. 237 (Roll No. 210851) in LPA No. 55/2015 Haveena Kumari, Serial No. 238 (Roll No. 110565) in LPA No. 55/2015 Neha Rathore, Serial No. 239 (Roll No. 110565) in LPA No. 55/2015 Isha, Serial No. 240 (Roll No. 110162) in LPA No. 55/2015 Vijender Kour, Serial No. 241(Roll No. 110003) in LPA No. 55/2015 Dr. Mohammad Ashraf Bhat, S/o Abdul Rashid Bhat, R/o Panthachowk, Sgr. in LPA No. 55/2015 Dr. Jehangir Aslam Mukdoomi, S/o Muhammad Aslam Mukdoomi, in LPA No. 55/2015 State of Jammu and Kashmir through its Chief Secretary, Civil Secretaryat, Jammu/Srinagar in LPA No. 57/2015 Commissioner/Secretary to Government, Social Welfare Department, Civil Secretariat, Jammu/Srinagar in LPA No. 57/2015 Jammu and Kashmir Board of Professional Entrance Examination, through its Secretary, BaghatBarzulla, Srinagar in LPA No. 57/2015 Chairman, Jammu and Kashmir Board of Professonal Entrance Examination, Baghat, Barzulla, Srinagar in LPA No. 57/2015 MeghaGandotra in LPA No. 57/2015 Rias Ahmad Bhat in LPA No. 57/2015 Syed RayeesQadri in LPA No. 57/2015 Mona Vats in LPA No. 57/2015 Haroon Rashid in LPA No. 57/2015 Mohammad Muzaffar in LPA No. 57/2015 ImramNazir in LPA No. 57/2015 Ganesh Kumar in LPA No. 57/2015 Tajesvi in LPA No. 57/2015 ShailiniKotwal in LPA No. 57/2015 Sourav Deep in LPA No. 57/2015 Faheem ul Islam in LPA No. 57/2015 Shahid Ahmad Mir in LPA No. 57/2015 Shoiabi Yousuf in LPA No. 57/2015 Showkat Amin in LPA No. 57/2015 WaniOwais Ahmad in LPA No. 57/2015 Meena Choudhary in LPA No. 57/2015 Mudasir Ahmad Tantray in LPA No. 57/2015 Samiullah Sami Malik in LPA No. 57/2015 Madhu Balla in LPA No. 57/2015 Geeta in LPA No. 57/2015 Abdul Wahid Raina in LPA No. 57/2015 Rameez Raja Najar in LPA No. 57/2015 Haveena Kumari in LPA No. 57/2015 Neha Rathore in LPA No. 57/2015 Neha Khajuria in LPA No. 57/2015 Shami Kumar in LPA No. 57/2015 Kiran Bala in LPA No. 57/2015 Abhineet Sayal in LPA No. 57/2015 Arvind Kour in LPA No. 57/2015 Rahila Qurashi in LPA No. 57/2015 Meenakshi Sharma in LPA No. 57/2015 Arti Devi in LPA No. 57/2015 Rachana Devi in LPA No. 57/2015 Sajida Batool in LPA No. 57/2015 Respondents 5 to 39 C/o J&K Board of Professional Entrance Examination, through its Secretary, Baghat Barzulla, Srinagar Dr. Nargis Ara in LPA No. 57/2015 D/o Ali Mohammad Tantray R/o Waltingwo, District Kulgam !Mr. Z. A. Shah, Sr. Advocate Mr. A. Hanan, Advocate ^Mr. G. A. Lone, Advocate Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Dhiraj Singh Thakur, Judge Date: 07/05/2015 : J U D G M E N T :
N. Paul Vasanthakumar, CJ
1. The Caveat petition nos. 580/2015 and 570/2015 are discharged.
2. These appeals are filed against a common order dated 22.04.2015 made in OWP no. 617/2015 and SWP no. 658/2015 wherein the learned Single Judge has dismissed the writ petitions filed by the appellants seeking to quash the counseling schedule dated 05.04.2015 for provisional admission to PG/MS/PG Diploma and MD Courses, 2015 and for direction to select the appellants under the Rural Service Category as a reservation category by applying 40% qualifying marks in the Entrance Examination for admission to MS/MD/PG Medical Courses 2015-16, by calling them for counseling which was scheduled to be held on 13.04.2015.
3. The brief facts necessary for disposal of these appeals are as follows:-
The appellants, who are Doctors, applied for admission to PG/MS/PG Diploma and MD Courses, 2015 in terms of notification dated 08.01.2015 calling for application by the Jammu and Kashmir Board of Professional Entrance Examination ( for short BOPEE). Their claim is that having served for a minimum period of five years in rural areas as Medical Officers, they constitute a reserved category and are required to obtain only 40% of minimum marks in the Entrance Examination and not 50% marks as prescribed for the Open Merit Category candidates for selection to PG/MS/PG Diploma and M. D. Course 2015-16. The appellants have appeared in the Entrance Examination and they have secured above 40% marks, however, below 50% marks. In the notification it was stated that selection of candidates will be governed by the J&K Board of Professional Entrance Examination Rules, 2014, J&K Reservation Act, 2004, J&K Reservation Rules, 2005 and the guidelines as published in the Prospectus 2015-16. After the Entrance Examination, the BOPEE issued notification No. 11-BOPEE of 2015 on 05.04.2015 and published the category wise provisional list of candidates eligible to attend counseling. The names of the appellants having not been included in the said provisional list, they filed the above writ petitions with the above said prayers. The learned Single Judge dismissed the writ petitions, hence the appellants have filed these appeals.
4. The learned Senior Counsel, Mr. Z. A. Shah, appearing for the appellants contended that, Clause 5 of the Prospectus issued by the BOPEE prescribes the eligibility for admission and sub Clause (1) and (2) are relevant for consideration of the issue involved in these cases. The learned senior counsel submitted that appellants having rendered more than five years Rural service, as mentioned in Clause 5 (2) (a) of the Prospectus, and they having been issued certificate as mentioned in Clause 5 (2) (b) by the Directorate of Health and Family Welfare, they are to be treated as Rural Service candidates. The learned counsel further submitted that Clause 6 deals with the reservation of seats which states that 65% of the seats are earmarked for Open Merit Candidates and 35% are earmarked for the reserved categories, of which 10% seats are reserved for the open category candidates who have not secured seats who served for a minimum period of five years in rural areas and the appellants are entitled to be treated as reserved category candidates.
5. According to the learned senior counsel, separate minimum marks of 50% in the Entrance Examination prescribed for the Open Merit category candidates are not required to be secured for the reserved categories including Rural service candidates. In short, the minimum marks required by the appellants is only 40% and not 50%. The learned senior counsel heavily relied on the Jammu and Kashmir Reservation Rules, 2005 which were framed by virtue of powers conferred under Section 23 of the Jammu and Kashmir Reservation Act, 2004. According to the learned senior counsel, Rule 13 deals with reservation in Professional Institutions and Rule 14 deals with additional reservations apart from the reservations mentioned in Rule 13. Rule 15 deals with distribution of seats for post-graduate courses in MD/MS/M.Tech, Engineering and Agricultural Sciences and similar other postgraduate courses. As per Rule 15, 65% of the seats are distributed to the Open Merit Category and remaining 35% are distributed to eight reserved categories of candidates. It is the primary contention of the learned senior counsel that Rule 15 (2) (f) states about the reservation of 10% of seats to the candidates who have served for a minimum period of five years in Rural Areas and the said Rule being independent, the minimum qualifying marks prescribed under Rule 16 to the reserved categories alone shall apply to the candidates who apply under the category of Rural Service.
6. The learned senior counsel further submitted that the Medical Council of India Regulations are silent above the reservation of seats other than Scheduled Caste/ Scheduled Tribe and Other Backward Classes and in the absence of specific provision in the MCI Regulations, the Rules framed by the State is not in conflict to the MCI Regulations and, therefore, the claim of the appellants are valid and the learned Single Judge has not considered the issue raised in the writ petition, in proper perspective and the order of the learned Single Judge is liable to be set aside and the appellants may be allowed to compete in the counseling treating 40% as minimum qualifying marks for the rural service candidates having five years of rural service. The learned senior counsel also submitted that for the past about ten years, the rural service candidates were being selected on the basis of 40% marks secured in the entrance examination and all of a sudden the said practice is changed and 50% marks is taken as minimum marks for rural service candidates also which is arbitrary.
7. Mr. G. A. Lone, learned counsel appearing for the BOPEE, on the other hand submitted that Rule 15(i) of the Jammu & Kashmir Reservation Rules, 2005, states that 65% of the seats shall be filled up by open merit category and Rule 15(ii)(f) is applicable to such of those candidates who could not get selection having regard to their lower merit and who have served for a minimum period of five years in rural areas. However, all the candidates competing under the open merit category as well as rural service category must secure 50% of the minimum qualifying marks as the said reservation is not based on social and educational backwardness. The learned counsel further submitted that the issue raised by the appellants in these appeals have already been decided by the Honble Supreme Court in the decision reported in (2003) 7 SCC 83 (State of M.P. & Ors. vs. Gopal D.Tirthani & Ors) which is reiterated in the recent judgment of Honble the Supreme Court reported in 2015 STPL(LE) 49917 SC ( Sudhir N. & Ors. vs. State of Kerala & Ors). The learned counsel also submitted that the selection of candidates under rural service category by fixing 40% as minimum qualifying marks in the entrance examination for the previous years was by mistake and as per the legal advice given in the year 2015 the said pattern has been changed and merely because for some years 40% of marks was taken as minimum for rural service candidates erroneously, the appellants have no right to ask for continuing the said practice which was followed contrary to the decisions of Honble the Supreme Court. The learned counsel submitted that the appellants cannot be allowed to contend that illegality be allowed to be perpetuated.
8. In reply to the said submissions, the learned senior counsel appearing for the appellants relied on the judgment of Honble the Supreme Court reported in (1997) 7 SCC 120 (Dr. Preeti Srivastava vs. State of M.P.) and JKJ(HC)(1) 2011, 838 (Alisha Kour vs. State of J&K & Ors.) and tried to distinguish the two judgments relied by learned counsel for the respondents.
9. We have considered the rival submissions, pursued the materials on record as well as the decisions relied by the respective counsels.
10. The short point arises for consideration in these appeals is as to whether the appellants are justified in contending that their minimum marks in written test (eligibility) should be fixed as 40% for admission to PG degree/ diploma in medical courses for 2015-16.
11. It is not in dispute that the appellants are not claiming the benefit of reservation either under SC/ST/OBC. All the appellants are rural service candidates having obtained certificates from the Directorate of Health and Family Welfare and they have also applied for admission to the seats allocated under the open merit category, namely, 65% and rural service candidates (10%). Admittedly the appellants have not secured 50% and above marks in the qualifying written examination. The grievance as focused by learned senior counsel appearing for the appellants is that the appellants having applied also for 10% of the seats under Rural Service Candidates which is titled as one of the reserved categories in terms of the prospects, the minimum marks prescribed for reserved categories, namely, 40%, alone can be taken as a criteria for their provisional selection. Clause 5(I) and 5(II) of the prospects are relevant for deciding the issue which reads thus:
ELIGIBILITY I. A candidate must:
a. be a permanent resident of J&K State as defined in Section 6 of the constitution of Jammu and Kashmir. b. possess MBBS / BDS (as the case may be) degree from the University of Jammu/University of Kashmir or an equivalent degree recognised by the University of Jammu/University of Kashmir and the Medical Council of India/Dental Council of India and also registered with the State Medical / Dental Council (as the case may be).
c. have completed or likely to complete at the time of first round of counseling satisfactorily one year pre-registration compulsory rotatory internship in a duly recognised institution as laid down by the University of Jammu/University of Kashmir for registration as a Medical / Dental graduate.
d. be eligible (wherever applicable) in terms of SRO-08 of 2005 (Annexure I).
II. Rural Service A candidate claiming benefit under rural service category must have:-
a. rendered service in rural area(s) at least 20 kms. away from the Municipal limits from the shortest possible routes and; b. a certificate issued by the Director, Health and Family Welfare to the effect that he/she has served in rural area(s) at least for five years (Annexure V). Clause 6 of the prospects prescribes the mode of filling up of the seats. This clause reads thus:
6. RESERVATION AND CATEGORY CODES The seats shall be filled up as under:
S. No Categories Category Code Reservation in %age 1 Open Merit (OM) 06 65 2 Reserved Categories:35
Category wise reservation in respect of various reserved categories is as below:
2.1 Scheduled Castes(SC) 07 04 2.2 Scheduled Tribes (ST) 08 05 2.3 Socially and Educationally Backward Classes:
2.3.1 Weak and under Privileged Classes/ Social Castes (OSC) 12 01 2.3.2 Residents of Backward Area (RBA) 13 10 2.3.3 Residents of Area Adjoining Actual Line of Control (ALC) 14 02 2.4 Children of Defense Personnel/ Military Forces and State Police Personnel (CDP) 15 02 2.5 Candidates possessing outstanding proficiency in sports 16 01 2.6 Open merit category other than item (1) above who have served for a minimum period of 5 years in Rural Area (RS) 22 10
12. As per note III of clause-6, the category wise distribution of seats is also mentioned which states that 65% (177 seats) are reserved for open merit category and 35% (94 seats) are reserved for reserved categories, of which 10% comes to 27. Rule 13 to 16 of the Jammu & Kashmir Reservation Rules, 2005, are also relevant for deciding the issue raised in these cases which reads as follows:
13. Reservation in Professional Institutions. - Except as hereinafter provided, seats shall be reserved for Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes in each course of professional institutions which shall, as nearly as possible, constitute such a percentage of the available seats in that course as shown against each category or group hereinafter: -
(i) Scheduled Castes 8%
(ii) Scheduled Tribes
(a) Gujjars and Bakerwals 6%
(b) Residents of District Leh 2%
(c) Residents of District Kargil 2%
(d) Other than
(a), (b) and
(c) above 1%
(iii) Socially and Educationally Backward Classes (other than Scheduled Castes and Scheduled Tribes)
(a) Weak and Under Privileged Classes (Social Castes) 2%
(b) Residents of Area adjoining Actual Line of Control 3%
(c) Residents of Backward Areas 20%
14. Other reservation. - In addition to the reservations specified in rule 13, the following reservation is also made in favour of the following categories of the permanent Residents of the State to the extent shown against each: -
(a) Children of Defence Personal 3%
(b) Children of Para-
military Forces and State 1%
(c) Candidates possessing outstanding proficiency in sports
15. Distribution of seats. - For the post-graduate courses in MD/MS/M.Tech, Engineering and Agricultural Sciences and similar other postgraduate courses, the seats shall be distributed as follows with the condition that the selection of candidates from the reserved categories for different streams shall be made strictly on the basis of their inter-se merit, treating them as a single class for purpose of allotment of streams: -
(i) Open Merit Category 65%
(ii) Reserved Categories:
(a) Scheduled Caste 4%
(b) Scheduled Tribe 5%
(c) Socially and Educationally Backward Classes:-
(i) Residents of Backward Areas 10%
(ii) Residents of Area Adjoining Actual Line of Control 2%
(iii) Weak and Under Privileged Classes (Social Castes) 1%
(d) Children of Defence Personnel/ Para-
military Forces and State Police Personnel 2%
(e) Candidate s possessin g Outstandi ng Proficienc y in Sports 1%
(f) Open merit category candidates other than those selected under item
(i) above who have served for a minimum period of 5 years in Rural Areas 10% Explanation: - The rural service means service rendered in the areas at least 20Kms away from municipal limits from the shortest possible route:
1[Provided that in case sufficient number of reserved seats is not available to accommodate all the reserved categories in a selection process, the available reserved seats shall be rotated in such manner that all reserved categories get their due share in a phased manner. For the said purpose, the following running roster of 35 seats shall be maintained and followed till the same gets exhausted:-1
Resident of Backward Areas 2 Open merit candidate who has served in Rural Areas.3
Scheduled Tribes 4 Scheduled Castes 5 Resident of Backward Areas 6 Open merit candidate who has served in Rural Areas 7 Residents of Area adjoining Actual Line of Control 8 Children of Defence Personnel/ State Police 9 Resident of Backward Areas 10 Open merit candidate who has served in Rural Areas 11 Scheduled Tribes 12 Scheduled Castes 13 Resident of Backward Areas 14 Open merit candidate who has served in Rural Areas 15 Social Castes 16 Scheduled Tribes 17 Resident of Backward Areas 18 Open merit candidate who has served in Rural Areas 19 Candidates possessing outstanding proficiency in sports 20 Scheduled Castes 21 Resident of Backward Areas 22 Open merit candidate who has served in Rural Areas 23 Resident of Area adjoining Actual Line of Control 24 Scheduled Castes 25 Resident of Backward Areas 26 Open merit candidate who has served in Rural Areas 27 Children of Defence Personnel/State Police 28 Scheduled Castes 29 Resident of Backward Areas 30 Open merit Candidate who has served in Rural Areas 31 Schedule Tribes 32 Resident of Backward Areas 33 Open merit candidate who has served in Rural Areas 34 Resident of Backward Areas 35 Open merit candidate who has served in Rural Areas]
16. Qualifying Marks. - The minimum qualifying marks in the entrance examination for selection in the courses mentioned in rule 14 and 15 shall be as follows: -
(i) Open merit category 50%
(ii) Reserve Categories 40%
13. The Medical Council of India Postgraduate Medical Education Regulations, 2000, prescribes the minimum eligibility for admission to PG Degree/ Diploma Medical Courses. Regulation 9 of MCI Regulations deals with selection of Postgraduate students which states that students for postgraduate medical courses shall be selected strictly on the basis of their academic merit and for determining the academic merit, the University/ Institution may adopt any one of the procedures both for degree and diploma courses:
(i) On the basis of merit as determined by the competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the university/ group of universities in the same state; or
(ii) (ii) On the basis of merit as determined by a centralized competitive test held at the national level; or
(iii) (iii) On the basis of the individual cumulative performance at the first, second and their MBBS examination, if such examination have been passed from the same university; or
(iv) (iv) Combination of (i) and (iii).
It is further stated that wherever entrance test for postgraduate is held by the State Government or a university or any authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical courses shall be 50% for general category candidates and 40% for the candidates belonging to Scheduled Castes, Schedule Tribes and Other Backward Classes.
14. From a careful reading of the above referred MCI regulation, it is evident that securing 50% of marks in the Common Entrance Examination for all candidates other than the candidates belonging to Scheduled Castes, Schedule Tribes and Other Backward Classes is mandatory. Whether the MCI Regulations will prevail over any other regulations including the rules framed for admission by any State Government or Universities or Union Territories, is no longer res-integra. The said issue was already considered by Honble the Supreme Court in the decision reported in (2003) 7 SCC 83 (supra). In the said decision it is held that the minimum qualifying marks cannot be done away with. The Supreme Court also noticed its earlier decisions, striking down the selection of students who have secured marks less than the marks prescribed by the Medical Council of India and in paragraph 25 held as under:-
25. The eligibility test, called the entrance test or the pre-
PG test, is conducted with dual purposes. Firstly, it is held with the objection of assessing the knowledge and intelligence quotient of a candidate whether he would be able to prosecute postgraduate studies if allowed an opportunity of doing so; secondly, it is for the purpose of assessing the merit inter se of the candidates which s of vital significance at the counselling when it comes to allotting the successful candidates to different disciplines wherein the seats are limited and some disciplines are considered to be more creamy and are more coveted than the others. The concept of a minimum qualifying percentage cannot, therefore, be given a complete go by. If at all there can be departure, that has to be minimal and that too only by approval of experts in the field of medical education, which for the present are available as a body in the Medical Council of India. In paragraph 27 the requirement of securing minimum marks by in-service candidates is emphasized as follows:-
27. The in-service candidates may have been away from academics and theories because of being in service. Still they need to be assessed as eligible for entrance in PG. For taking up such examination, they must either keep updating themselves regularly or concentrate on preparatory studies to entrance examination but without sacrificing or compromising with their obligations to the people whom they are meant to serve on account of being in State services. In the concluding paragraph 36, it is held thus:-
36. We sum up our conclusions as under:-
1. ..
2. There can be only one common entrance test for determining eligibility for postgraduation for in-service candidates and those not in service. The requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the Medical Council of India Regulations framed in this behalf.
3 ..
4. It is permissible to assign a reasonable weightage to services rendered in rural/tribal areas by the in-service candidates for the purpose of determining inter se merit within the class of in-service candidates who have qualified in the pre-PG test by securing the minimum qualifying marks as prescribed by the Medical Council of India.
15. Honble the Supreme Court in the decision reported in (2012) 7 SCC 389 ( Asha v. Pt. B. D. Sharma University of Health Sciences and ors) held that the Regulations followed by the Medical Council of India are strictly having the force of law and are binding on all the parties concerned.
16. The said position is again reiterated by Honble the Supreme Court in the latest decision reported in 2015 STPL(LE) 49917 SC (Sudhir N. & Ors. vs. State of Kerala & Ors), wherein the issue with regard to the securing of minimum qualifying marks for service candidates was directly put as an issue. The contention urged by the in-service doctors to justify the enactment of Kerala Medical Officers admission to postgraduate Courses under service quota Act, 2008, was that but for a provision permitting lesser minimum qualifying marks for admission to postgraduate courses, it will be difficult to compete with fresh candidates who will be academically fresh and may be better than candidates who have since long given up entirely to the service of the people at large, some of them in remote areas of the State, was not accepted. It has also been held that the State Government cannot enact a legislation contrary to the MCI Regulations and the decision of the Kerala High Court setting aside the offending provision was up held by Honble the Supreme Court and set aside the High Court order insofar as giving direction to select senior candidates without reference to merit in service quota and admission shall be given on the basis of inter se merit of the candidates. In paragraph 20 it is held thus:-
20. It is in the light of the above pronouncements futile to argue that the impugned legislation can hold the field even when it is in clear breach of the Medical Council of Indias Regulations. The High Court was, in our opinion, right in holding that inasmuch as the provisions of Section 5(4) of the impugned enactment provides a basis for selection of candidates different from the one stipulated by the MCI Regulations it was beyond the legislative competence of the State Legislature. Having said that the High Court adopted a reconciliatory approach when it directed that seniority of the in-
service candidates will continue to play a role provided the candidates concerned have appeared in the common 25 Page 26 entrance test and secured the minimum percentage of marks stipulated by the Regulations. The High Court was, in our opinion, not correct in making that declaration. That is because, even when in Gopal D. Tirthanis case (supra) this Court has allowed in-service candidates to be treated as a separate channel for admission to post-graduate course within that category also admission can be granted only on the basis of merit. A meritorious in-service candidate cannot be denied admission only because he has an eligible senior above him though lower in merit. It is now fairly well settled that merit and merit alone can be the basis of admission among candidates belonging to any given category. In service candidates belong to one category. Their inter-se merit cannot be overlooked only to promote seniority which has no place in the scheme of MCI Regulations. That does not mean that merit based admissions to in-service candidates cannot take into account the service rendered by such candidates in rural areas. Weightage for such service is permissible while determining the merit of the candidates in terms of the third proviso to Regulation 9 (supra). Suffice it to say that Regulation 9 remains as the only effective and 26 Page 27 permissible basis for granting admission to in- service candidates provisions of Section 5(4) of the impugned enactment notwithstanding. That being so, admissions can and ought to be made only on the basis of inter se merit of the candidates determined in terms of the said principle which gives no weightage to seniority simplicitor.
17. Applying the principles laid down in the judgments to the facts of these cases, the learned Single Judge was justified in dismissing the writ petitions, holding that the candidates other than Scheduled Caste/ Scheduled Tribe and Other Backward Classes, must secure 50% marks in the Entrance Examination for qualifying themselves for admission to the PG Degree/Diploma in Medical Courses. The decision of the learned Single Judge is based on the principles emphasized in the judgments of Honble the Supreme Court as well as the MCI Regulations. Hence we find no merit in these L.P. Appeals.
18. In fine, both the L.P. Appeals are dismissed along with connected MPs. No costs.
(Dhiraj Singh Thakur) (N. Paul Vasanthakumar)
Judge Chief Justice
SRINAGAR
07.05.2015
Anil Raina, Secy