Chowdhury Navin
Hemabhai & Ors. Vs The State of Gujarat & Ors.
JUDGMENT
A. K. PATNAIK, J.
1.
Leave
granted.
2.
The
appellants belong to Scheduled Castes, Scheduled Tribes and Socially and Educationally
Backward Classes and they have in this Civil Appeal challenged the judgment of
the Division Bench of the High Court of Gujarat in Special Civil Application No.
9526 of 2009, refusing to quash the communication of the Medical Council of
India for discharging them from the MBBS course to which they had been admitted.
3.
The
facts briefly are that the Medical Council of India (for short "the MCI")
prescribed inter alia in its regulations called "The Regulations on Graduate
Medical Education, 1997" (for short "the MCI Regulations") that candidates
belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes must
have obtained a minimum of 40% marks together in Physics, Chemistry and Biology
at the qualifying examination and, in addition, 40% marks in Physics, Chemistry
and Biology taken together in the competitive examination for admission to the MBBS
course.
The State Government of
Gujarat also made rules under the Gujarat Professional Medical Educational Colleges
or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 called
"The Gujarat Professional Medical Educational Colleges or Institutions (Regulation
of Admission and Payment of Fees) Rules, 2008" (for short "the State
Rules, 2008"). Rule 5 (1) (iv) of the State Rules, 2008 provided that for admission
to a professional college, a candidate must have passed the qualifying examination
and must have appeared in the common entrance test of Gujarat. A notification
was issued by the State Government under Rule 12 of the State Rules, 2008
prescribing the minimum marks in the qualifying examination for admission to MBBS
course for Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward
Classes (excluding Creamy layer) candidates as 40% in Physics, Chemistry and
Biology.
4.
The
appellants had secured 40% marks in the qualifying examination in Physics, Chemistry
and Biology as prescribed in the notification issued under Section 12 of the
State Rules, 2008. The appellants also appeared in the common entrance test conducted
for Gujarat for 2008-2009, but secured less than 40% marks in Physics, Chemistry
and Biology in the common entrance test. As the appellants were placed in the
merit list in the common entrance test, they were admitted to the MBBS course in
Pramukhswami Medical College, Karamsad (for short "the College"). After
collecting information from the College, the MCI sent a communication dated
10.02.2009 to the College to discharge the seven appellants and one more student
as they had secured less than 40% marks in Physics, Chemistry and Biology in the
common entrance test and were not eligible for admission in the MBBS course as
per the MCI Regulations.
The College entered
into some correspondence with the MCI and the Admission Committee of the State Government
and on 01.07.2009 cancelled the admission of the appellants on the insistence
of the MCI in its letter dated 27.03.2009. The State Government addressed a communication
to the MCI saying that the students were admitted in accordance with the State Rules,
2008 as per their merit and they may be allowed to pursue the medical education
as they were not at fault. On the request of the appellants, the College
permitted the appellants to appear in the preliminary examination for First MBBS
in July 2009 subject to the final decision of the MCI.
5.
The
appellants then moved the High Court under Article 226 of the Constitution in
Special Civil Application No.9526 of 2009 and by the impugned judgment, the Division
Bench of the High Court dismissed the Writ Petition. The High Court held that Clause
5.5 (ii) of the MCI Regulations specifically stipulated that candidates belonging
to Scheduled Castes, Scheduled Tribes or Other Backward Classes must have
obtained a minimum of 40% marks in Physics, Chemistry and Biology taken together
in the qualifying examination and, in addition, must have come in the merit
list prepared as a result of the competitive entrance examination by securing not
less than 40% marks in Physics, Chemistry and Biology in the competitive entrance
test and as the appellants have not satisfied this mandatory stipulation under
clause 5.5 (ii) of the MCI Regulations, there was no illegality in the
directions given by the MCI to discharge the appellants from the college. The
High Court also struck down Rule 5(1)(iv) of the State Rules, 2008 which provided
that a candidate who appeared in the Gujarat common entrance test was eligible for
admission to the MBBS course even if he obtained less than 40% marks in
Physics, Chemistry and Biology taken together in the common entrance test.
6.
Mr.
K.V. Vishwanathan, learned Senior Counsel for the appellants, submitted that
the High Court erred in upholding the directions of the MCI to discharge the
appellants who had been validly admitted under the State Rules, 2008 and the
validity of the State Rules, 2008 was not under challenge before the High
Court. He submitted that rule 5 (1) (iv) of the State Rules, 2008 had been framed
by the State Government of Gujarat in exercise of its powers under Section 20(1)
read with Section (4) of the Gujarat Professional Medical Educational Colleges or
Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 and it
clearly provides that a candidate who had passed the qualifying examination and
appeared in the Gujarat common entrance test conducted in the current academic year
was eligible for admission to the MBBS course.
He submitted that as the
appellants had not only passed the qualifying examination, but also appeared in
the common entrance test for the academic year 2008-2009 they were clearly eligible
for admission to the college for the MBBS course. He submitted that although
rule 5 (1) (iv) of the State Rules, 2008 was not under challenge, the High Court
struck down the rule as invalid in the impugned judgment merely because the clause
5.5 (ii) of the MCI Regulations prescribed that a candidate has to obtain 40% marks
in Physics, Chemistry and Biology taken together in the competitive entrance examination
on the basis of which the candidates were to be admitted and the appellants have
not secured such 40% marks in the competitive entrance examination.
He submitted that the
mistake in making the State Rules, 2008 consistent with the MCI Regulations was
of the State Government and not of the candidates, who have been admitted to the
MBBS course in accordance with the State Rules, 2008 and therefore the
appellants should not be made to suffer for such mistake of the rule making
authority. He submitted that this Court had adopted a sympathetic approach in similar
situations where admissions of students were in jeopardy for none of their fault
in Rajendra Prasad Mathur v. Karnataka University and Anr. [1986 (Supp) SCC
740], A. Sudha v. University of Mysore [(1987) 4 SCC 537], Ashok Chand Singhvi v.
University of Jodhpur and others [(1989) 1 SCC 399] and M.A. Salam (II) v.
Principal Secretary, Government of A.P. and others [(2005) 13 SCC 677].
7.
Mr.
Amrendra Sharan, learned Senior Counsel appearing for the MCI, on the other hand,
supported the impugned judgment of the High Court and submitted that for achieving
the purposes of the "Indian Medical Council Act, 1956", the MCI has made
the MCI Regulations which are statutory in nature and unless the State
Government and the Universities cooperate with the MCI in enforcing these statutory
regulations, the MCI will not be able to discharge its statutory obligations
under the Act.
He submitted that
regulation 5.5 of the MCI Regulations lays down the procedure for selection to
the MBBS course and clause 5.5 (ii) of these Regulations clearly provides that in
case of admission on the basis of competitive entrance examination, a candidate
belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes must
have secured a minimum of 40% marks taken together in Physics, Chemistry and Biology
of the qualifying examination and, in addition, must have secured 40% marks in
these subjects in the competitive entrance examination.
He referred to the marks
of the seven appellants and one more student admitted to the college to show that
none of them fulfilled the eligibility criteria as mentioned in clause 5.5 (ii)
of the MCI Regulations. He submitted that the MCI, therefore, wrote to the Dean
of the college in its letters dated 10.02.2009 and 27.03.2009 to discharge these
eight students. He submitted that this Court had repeatedly held that the
regulations made by the MCI are statutory, mandatory and binding in character
and admissions to medical courses could not be made in violation of the MCI
regulations. He cited the decision in Medical Council of India v. State of
Karnataka and others [(1998) 6 SCC 131] in which this Court has held that the
Indian Medical Council Act is relatable to Entry 66 of List I (Union List) of the
Seventh Schedule of the Constitution and prevails over any State enactment to
the extent that the State enactment is repugnant to the provisions of the Act. He
submitted that the MCI Regulations will therefore prevail upon the State Rules,
2008 and the contention on behalf of the appellants that the appellants were admitted
in accordance with the State Rules, 2008 and their admissions are valid, even
though contrary to the MCI Regulations, has no force.
8.
8.
Mr. Maulik Nanavati, appearing for the State of Gujarat, submitted that while making
the State Rules, 2008, clause 5.5(ii) of the MCI Regulations was lost sight of
and as a result admissions in the academic year 2008-2009 to the MBBS course in
different colleges in the State of Gujarat were made only in accordance with the
State Rules, 2008 and some candidates who did not fulfill the eligibility
criteria mentioned in clause 5.5 (ii) of the MCI Regulations got admitted to the
MBBS course during the year 2008-2009. He submitted that for the subsequent years,
i.e. 2009-2010 onwards, the State Government has provided in the Rules that
students belonging to the Scheduled Castes, Scheduled Tribes and Other Backward
Classes must obtain 40% marks in Physics, Chemistry and Biology in the
qualifying examination as well as in the common entrance test for admission into
the MBBS course as prescribed in the MCI Regulations.
9.
Clause
5.5(ii) of the MCI Regulations, which prescribes the procedure for selection
and admission to the MBBS course on the basis of competitive entrance examination,
reads as under:
"(5) Procedure for
selection to MBBS course be as follows:-
In case of admission on
the basis of competitive entrance examination under clause (2) to (4) of this regulation,
a candidate must have passed in the subjects of Physics, Chemistry, Biology and
English individually and must have obtained a minimum of 50% marks taken together
in Physics, Chemistry and Biology at the qualifying examination as mentioned in
clause (2) of regulation 4 in addition must have come in the merit list prepared
as a result of such competitive entrance examination by securing not less than 50%
marks in Physics, Chemistry and Biology taken together in the competitive examination.
In respect of candidates
belonging to Schedule Castes, Schedule Tribes, or Other Backward Classes the marks
obtained in Physics, Chemistry and Biology taken together in qualifying examination
and competitive entrance examination be 40% instead of 50% as stated above: Provided
that a candidate who has appeared in the qualifying examination the result of which
has not been declared, he may be provisionally permitted to take up the competitive
entrance examination and in case of selection for admission to the MBBS course,
he shall not be admitted to the course until he fulfills the eligibility criteria
under regulation"
It will be clear from
a careful reading of this clause of the MCI Regulations that candidates belonging
to the Scheduled Castes, Scheduled Tribes and Other Backward Classes must have secured
40% marks in Physics, Chemistry and Biology taken together in both the qualifying
examination and must also secure 40% marks in the competitive entrance
examination on the basis of which admission to the MBBS course is being made in
a State.
10.
The
relevant provisions of Rule 5 and Rule 12 of the State Rules, 2008 are quoted
herein below:
"Eligibility for
Admission: (1) For the purpose of admission, a candidate shall have passed with
"B-group" or "AB- group" the qualifying examination from, -
i.
the
Gujarat Board; or
ii.
the
Central Board of Secondary Education Board provided that the school in which the
candidate has studied, should have been located in the State of Gujarat; or
iii.
the
Council of Indian School Certificate Examinations, New Delhi Board provided that
the school in which the candidate has studied should have been located in the
State of Gujarat; and
iv.
appeared
in the Gujarat Common Entrance Test conducted in the current academic year.
Minimum qualifying standard
for admission: (1) No student shall be admitted in the professional medical education
course unless he/she fulfills the eligibility criteria, including the minimum qualifying
marks (standard). (2) The minimum qualifying standard for admission shall be
notified by the State Government by order in the Official Gazette from time to
time." The notification issued by the State Government under rule 12 (2)
notifying the minimum qualifying standards for admission is extracted herein
below: "ORDER Health and Family Welfare Department, Sachivalaya,
Gandhinagar, Dated the 2nd June, 2008 Gujarat No. MCG-1008-931-J: Professional
In pursuance to the Medical
Educational power conferred by the Colleges or sub rule (2) of rule 12 Institutions
of the Gujarat (Regulation of Professional Medical Admission Educational
Colleges or and Payment of Institutions (Regulation of Admission and Payment of
Fees) Rules, 2008 the Government of Gujarat here by notifies following minimum qualifying
standard for admission to the first year of professional medical educational courses
namely:- Minimum aggregate marks of external evaluation in theory subjects in qualifying
examination (Physics, Chemistry and Biology)
I.
Medical
and Dental Courses:
a.
for
General Category Candidates 70%
b.
for
Schedule Castes, Scheduled 40% Tribes, Socially & Educational Backward
Classes (Excluding Creamy layer) Candidates
II.
For
Ayurved/ Nursing/ Homeopathy/ Physiotherapy/ Optometry/ Naturopathy/ Orthotics/
Occupational Therapy Courses.
a.
for
General Category Candidates 50%
b.
for
Schedule Castes, Scheduled 40% Tribes, Socially & Educational Backward
Classes (Excluding Creamy layer) Candidates By the order and in the name of the
Governor of Gujarat.
Sd/-
(A.K. Bhatt)
Joint
Secretary to the Government.
" On a careful
reading of the provisions of Rules 5 and 12 of the State Rules, 2008 and the
notification dated 02.06.2008 of the State Government under Rule 12 (2) of the
State Rules, 2008, it will be clear that under the State Rules, 2008 candidates
belonging to the Scheduled Castes, Scheduled Tribes and Socially and Educationally
Backward Classes (excluding Creamy Layer) eligible for admission to the MBBS
course was required to have 40% marks in the qualifying examination in Physics,
Chemistry and Biology and must have appeared in the competitive entrance examination
conducted in the current academic year.
11.
On
a comparison of the minimum criteria for admission to the MBBS course laid down
in the MCI Regulations and the State Rules 2008, we find that both the MCI
Regulations and State Rules, 2008 insist that a candidate must have obtained
40% marks in the Physics, Chemistry and Biology in the qualifying examination. The
only difference between the MCI Regulations and the State Rules, 2008 is that while
the MCI Regulations require the candidates belonging to the Scheduled Castes, Scheduled
Tribes and Other Backward Classes to secure in the competitive entrance
examination for admission 40% marks in the Physics, Chemistry and Biology taken
together, the State Rules, 2008 do not contain such a requirement. But as the State
Rules had prescribed a qualification standard which was less than that of MCI, the
seven appellants,
who took the Gujarat
common entrance test for the academic year 2008-2009, got selected on the basis
of their merit for the seats in the MBBS course reserved for the Scheduled Castes,
Scheduled Tribes and Other Backward Classes and got admitted in the college
even though they had not secured 40% marks in Physics, Chemistry and Biology in
the Gujarat common entrance test. The qualification requirements prescribed by the
State cannot be lower than those prescribed by the MCI. Therefore, in law, the order
of the High Court is right.
12.
This
is, however, a clear case where the admissions of the seven appellants took
place due to the fault of the rule-making authority in not making the State
Rules, 2008 in conformity of the MCI Regulations. For this fault of the rule-making
authority if the appellants are discharged from the MBBS course, they will
suffer grave injustice. On the peculiar facts of the case, we are thus of the
view that this is a fit case where this Court should exercise its power under Article
142 of the Constitution to do complete justice between parties. In Delhi Judicial
Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Others. [(1991)
4 SCC 406] after examining the width of this power under Article 142 of the
Constitution, this Court held: "No enactment made by Central or State legislature
can limit or restrict the power of this Court under Article 142 of the Constitution,
though while exercising power under Article 142 of the Constitution, the court must
take into consideration the statutory provisions regulating the matter in
dispute.
What would be the
need of "complete justice" in a cause or matter would depend upon the
facts and circumstances of each case and while exercising that power the Court would
take into consideration the express provisions of a substantive statute. Once this
Court has taken seisin of a case, cause or matter, it has power to pass any
order or issue direction as may be necessary to do complete justice in the matter.
This has been the consistent view of this Court as would appear from the
decisions of this Court in State of U.P. v. Poosu [(1976) 3 SCC 1], Ganga Bishan
v. Jai Narain [(1986) 1 SCC 75], Navnit R. Kamani v. R.R. Kamani B.N. Nagarajan
v. State of Mysore Harbans Singh v. State of U.P.
13.
In
Sandeep Subhash Parate v. State of Maharashtra [(2006) 7 SCC 501], this Court has
also held that while exercising its discretion and jurisdiction and to do complete
justice in terms of Article 142 of the Constitution, the Court must consider
all relevant aspects of the matter including the decisions of this Court. In
that case, the Court found that the Sandeep Subhash Parate did not lack bona fides
in getting admission in the course of Bachelor of Engineering, Pune University,
in a seat reserved for Scheduled Castes, and exercising its constitutional power
under Article 142 of the Constitution the Court held that his studies in the
professional course should not be disturbed as he might not be entirely
responsible for the admission in a reserved seat.
14.
In
the facts of the present case, we have found that the appellants were not to be
blamed for having secured admission in the MBBS course and the fault was entirely
of the rule-making authority in making the 2008 Rules and the appellants have gone
through the pains of appearing in the common entrance test and have been
selected on the basis of their merit and admitted into the MBBS course in the
college in accordance with the State Rules, 2008 and have pursued their studies
for a year. Hence, even though under the MCI Regulations the appellants were not
eligible for admission to the MBBS course in the academic year 2008-2009, for the
purpose of doing complete justice in the matter before us, we direct that the admissions
of the appellants to the MBBS course in the college during the academic year
2008-2009 will not be disturbed. This direction shall not, however, be treated
as a precedent. The appeal is disposed of accordingly with no order as to
costs.
..........................J.
(R.V. Raveendran)
..........................J.
(A. K. Patnaik)
New
Delhi,
February
18, 2011.
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