Landmark Judgement from Gauhati High Court - Certain MCI Guidelines are against Constitution
From http://ghconline.nic.in/Judgment/WA352011.pdf
Page No. 1
WP(C) 354/2011 & WA 35/2011
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
[AGARTALA BENCH]
WP(C) No. 354/2011
Petitioners :
1. Shri Simmons Debbarma,
S/o Shri Samarendra Debbarma,
Resident of Krishnanagar, near Weights & Measure
Office, P.O. Agartala, P.S. West Agartala,
District West Tripura,
2. Shri Jasckson Tripura,
S/o Shri Ditiram Tripura,
Resident of Village & P.O. Fulcharri,
P.S. Manubazar, Sabroom,
Dist. South Tripura,
3. Shri Hawmchang Debbarma,
S/o Shri Prabir Debbarma,
Resident of Harish Thakur Road, Krishnanagar,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura,
4. Shri Trijeshwar Debbarma
S/o Shri Sudhanaya Debbarma,
Resident of Ujan Abhoynagar,
P.O. Abhoynagar, P.S. East Agartala,
Dist. West Tripura,
5. Ms. Juliet Debbarma,
D/o Shri Paritosh Debbarma,
Resident of Ujan Abhoynagar,
P.O. Abhoynagar, P.S. East Agartala,
Dist. West Tripura,
6. Ms. Monalisha Debbarma,
D/o Shri Prabin Debbarma,
Resident of village Khowai,
P.O. & P.S. Khowai,
Dist. West Tripura.Page No. 2
WP(C) 354/2011 & WA 35/2011
By Advocates :
Mr. A. K. Bhowmik, Sr. Advocate.
Mr. M. Debbarma,
Mr. B. Bhattacharjee,
Mr. R. Dutta,
Ms. M. Choudhury,
- versus -
Respondents:
1. The State of Tripura,
Represented by the Secretary to the Government of
Tripura, Department of Higher Education,
New Secretariat, Capital Complex,
P.O. Kunjaban, P.S. East Agartala,
Dist. West Tripura,
2. The Director of Higher Education,
Old Secretariat Building,
P.O. Agartala, P.S. West Tripura,
Dist. West Tripura,
3. The Director of Health Services,
Government of Tripura,
Gurkhabasti, P.O. Kunjaban,
P.S. East Tripura,
Dist. West Tripura,
4. The Medical Council of India,
Having its office at Aiwan-e-Ghalib Marg,
Kotla Road, New Delhi-110002,
Represented by its Secretary,
5. The Tripura Board of Joint Entrance Examination
(Directorate of Higher Education),
3rd Floor, Building of Tripura Board of Secondary
Education, Gurkhabasti, Agartala, PIN-799006,
Represented by its Chairman,
6. The Union of India,
Represented by its Secretary,
Ministry of Health & Family Welfare,
Government of India, New Delhi.
By Advocates:
Mr. P. K. Biswas, Assistant Solicitor General of India.
Ms. A. S. Lodh, Govt. Advocate,
Ms. R. Guha, Advocate. Page No. 3
WP(C) 354/2011 & WA 35/2011
WA No. 35/2011
[In WP(C) 337/2011]
Appellants :
1. Ms. Monali Debbarma,
D/o Shri Manoranjan Debbarma,
Resident of Melarmath Govt. Qrtr. Type-II/31
P.O. Agartala, District West Tripura,
2. Shri Darneal Jamatia,
S/o Shri Debadhan Jamatia,
Resident of Village & P.O. Chachubazar,
P.S. Ompinagar, Amarpur,
Dist. South Tripura,
3. Ms. Krishma Debbarma,
S/o Shri Amrit Debbarma,
Resident of Krishnanagar,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura,
4. Ms. Catherine Halam,
D/o Shri John. N. Halam,
Resident of Krishnanagar, Lake Chowmuhani,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura,
5. Ms. Aseema Chakma,
D/o Shri Ratan Chakma,
Resident of Capital Complex, Khejurbagan,
P.O. Kunjaban, P.S. East Agartala,
Dist. West Tripura,
6. Ms. Sahani Debbarma,
D/o Shri Monoranjan Debbarma,
Resident of Qrtr. No. T/II/24,
Kunjaban Township, Shyamalibazar,
P.O. Kunjaban, P.S. East Agartala,
Dist. West Tripura.
7. Ms. Hellee Debbarma,
D/o Shri Bijan Debbarma,
Resident of village Chargaria,
P.O. Mandai, P.S. Jirania,
Dist. West Tripura.
8. Shri Nitin Murasingh,
S/o Shri Brajalal Murasingh,
Village & P.O. Chailengta, Page No. 4
WP(C) 354/2011 & WA 35/2011
(Jadu Mohan Tripura Complexd),
Langtherai Valley, Dhalai.
9. Ms. Harshita Debbarma,
D/o Shri Dilip Debbarma,
Resident of Krishnanagar,
Colonel Chowmuhani,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura.
10. Shri Saiman Debbarma,
S/o Shri Satya Narayan Debbarma,
Old Kalibari Lane, Krishnanagar,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura.
11. Shri Amalendu Tripura,
S/o Shri Daya Kumar Tripura,
Resident of Village & P.O. Ludhua,
P.O. Sabroom, Dist. South Tripura,
At present residing at Abhoynagar,
P.O. & P.S. Abhoynagar, P.S. East Agartala,
Dist. West Tripura.
12. Shri Paufru Mog,
S/o Angthai Mog,
Resident of Village & P.O. Santirbazar,
P.S. Santirbazar, Dist. South Tripura.
13. Shri Abhijit Tripura,
S/o Shri Chander Mohan Tripura,
Resident of Bhati Abhoynagar,
Near Cantonment Road, P.O. Agartala,
P.S. West Agartala,
Dist. West Tripura.
14. Shri Branela Debbarma,
S/o Shri Monmohan Debbarma,
Resident of Krishnanagar,
Suparibagan, Near Dasharath Deb Bhawan,
P.S. East Agartala,
Dist. West Tripura.
15. Ms. Namita Kaloi,
D/o Shri Ananta Kaloi,
Resident of Village Boulapasa,
P.O. & P.S. Kailasahar,
Dist. North Tripura.
16. Shri V. S. Zela Darlong,
S/o Shri Lal Hminga Darlong,Page No. 5
WP(C) 354/2011 & WA 35/2011
Resident of Village Munai, P.O. Deoracherra,
P.S. Kaisasahar, Dist. North Tripura.
17. Shri Naresh Chandra Reang,
S/o Shri Shri Shyam Kumar Reang,
Resident of Village Mashurai Para,
Kamalacherra, P. O. & P.S. Ambassa,
Dist. Dhalai.
[Petitioners in WP(C) 337/2011]
By Advocates :
Mr. A. K. Bhowmik, Sr. Advocate.
Mr. M. Debbarma,
Mr. B. Bhattacharjee,
Mr. R. Dutta,
Ms. M. Choudhury,
- versus -
Respondents:
1. The State of Tripura,
Represented by the Secretary to the Government of
Tripura, Department of Higher Education,
New Secretariat, Capital Complex,
P.O. Kunjaban, P.S. East Agartala,
Dist. West Tripura,
2. The Director of Higher Education,
Old Secretariat Building,
P.O. Agartala, P.S. West Tripura,
Dist. West Tripura,
3. The Director of Health Services,
Government of Tripura,
Gurkhabasti, P.O. Kunjaban,
P.S. East Tripura,
Dist. West Tripura,
4. The Medical Council of India,
Having its office at Aiwan-e-Ghalib Marg,
Kotla Road, New Delhi-110002,
Represented by its Secretary,
5. The Tripura Board of Joint Entrance Examination
(Directorate of Higher Education),Page No. 6
WP(C) 354/2011 & WA 35/2011
3rd Floor, Building of Tripura Board of Secondary
Education, Gurkhabasti, Agartala, PIN-799006,
Represented by its Chairman,
6. The Union of India,
Represented by its Secretary,
Ministry of Health & Family Welfare,
Government of India, New Delhi.
By Advocates:
Mr. P. K. Biswas, Assistant Solicitor General of India.
Ms. A. S. Lodh, Govt. Advocate,
Ms. R. Guha, Advocate.
BEFORE
THE HON’BLE MR. JUSTICE I. A. ANSARI
THE HON’BLE MR. JUSTICE C. R. SARMA
Date of hearing : 15.09.2011 & 16.09.2011.
Date of delivery of Judgment: 21.09.2011
JUDGMENT & ORDER
(CAV)
(Ansari, J.)
By this common judgment and order, we propose to dispose
of the writ petition, which has been registered as WP(C) No. 354 of
2011, and also the writ appeal, which has arisen out of the judgment
and order, dated 09-11-2011, passed in WP(C) No. 337 of 2011,
whereby the writ petition stands dismissed inasmuch as the decision
in any of the two, namely, the writ petition or the appeal, would
have a bearing on the outcome of the other, because some of the Page No. 7
WP(C) 354/2011 & WA 35/2011
issues, raised in the appeal and the writ petition, are closely interlinked and wholly inseverable.
2. Before we come to the merit of the writ petition and the
appeal, it is necessary to, first, take note of the material facts, which
have given rise to the present appeal and, then, take note of the
material facts involved with the writ petition. The material facts,
leading to the present appeal, are, therefore, set out, in brief,
hereinbelow:
(i) Out of the appellants, who are 17 in number, as many as
9 appellants appeared in Tripura Board of Secondary Education (in
short, ‘the TBSE’), 6 of the appellants appeared in the Central Board
of Secondary Examination (in short, ‘the CBSE’) and the remaining
two appellants appeared in Indian School Certificate Examination
(in short, ‘the ISCE’). All of them secured more than 40% marks, in
aggregate, in Physics, Chemistry and Biology taken together and
being, thus, qualified to appear in the Joint Entrance Examination (in
short, ‘the JEE’) conducted by the Tripura Board of Joint Entrance
Examination for admission into the MBBS course, in the year 2011,
against 25 seats, reserved for candidates of Scheduled Tribe
belonging to the State of Tripura, the appellants, as members of the
Scheduled Tribe, appeared in the JEE pursuant to the notification,
dated 28.12.2010, issued, in this regard, by Tripura Board of Joint
Entrance Examination. Page No. 8
WP(C) 354/2011 & WA 35/2011
(ii) While inviting applications from candidates for JEE, it
was, nowhere, mentioned by the Tripura Board of Joint Examination
in the notification, dated 28-12-2010, that a student, who appears as
a Scheduled Tribe candidate, has to secure a minimum of 40% marks
in the JEE and, in consequence thereof, the appellants claim to have
remained unaware of the fact that they would be required to secure
minimum 40% marks in the JEE, too, in order to qualify for
allotment of seats in the MBBS course from the State quota meant for
the candidates of the Scheduled Tribe. This apart, though the
Medical Council of India (in short, ‘the MCI’) suggested to the State
Government to provide coaching to the candidates of the Scheduled
Caste and Scheduled Tribe so as to enable them to compete and
qualify in the JEE, no such coaching was ever provided to the
appellants and other similarly situated persons; hence, no condition
for securing of minimum marks, in the said three subjects, in the
JEE, could have been legally insisted upon by the respondents.
(iii) Moreover, no cut-off marks, for allotment of seats to the
candidates in the MBBS course, as prescribed by the MCI, was, in
the past, insisted upon by the Tripura Board for allowing admission
into the MBBS course; but, all of a sudden, the State respondents, at
the time of counselling, informed the appellants and other similarly
situated candidates that none of them had secured, in the JEE, 40%
marks, which was the prescribed cut-off marks for the candidates of
Scheduled Tribe, in the JEE, and, hence, no seat for admission into Page No. 9
WP(C) 354/2011 & WA 35/2011
the MBBS course could be allotted to the appellants. As a result
thereof, out of the total number of 25 seats, reserved for the
candidates of Scheduled Tribe in the State of Tripura, as many as 23
seats have remained vacant. Similarly, though two seats in the said
Medical College of the State are meant for the candidates of
Scheduled Caste belonging to the State of Tripura, both these seats
have remained vacant due to the fact that although the candidates
belonging to the Scheduled Caste did secure more than 40% marks
in Physics, Chemistry and Biology in their qualifying examination,
namely, TBSE, CBSE and ISCE, they have not been able to secure, as
indicated hereinbefore, 40% marks in the JEE. Aggrieved by the
conduct of the respondents, the appellants filed a writ petition,
under Article 226 of the Constitution of India, which gave rise to
WP(C) No.337/2011, challenging the decision of the respondents not
to admit the writ petitioners, i.e., the present appellants, into the
MBBS course against the quota meant for the candidates of
Scheduled Tribe of the State.
(iv) What was, in substance, pointed out, on behalf of the
writ petitioners, in the writ petition (which has given rise to the
present appeal), was that the respondents/authorities concerned
having not provided any coaching for improvement of the
candidates belonging to the Scheduled Caste and Scheduled Tribe so
as to enable them to complete and qualify in the JEE and having also
not informed the candidates, while inviting applications by Page No. 10
WP(C) 354/2011 & WA 35/2011
notification, dated 28.12.2010, for JEE, that even the candidates,
belong to Scheduled Caste or Scheduled Tribe, as the case may be,
would have to secure minimum 40% marks, in the JEE too, in order
to become eligible for admission into the MBBS course against the
quota meant for such candidates in the State, the
respondents/authorities concerned could not have rejected the
candidature of the writ petitioners, (i.e., the present appellants), on
the ground that though they had secured more than 40% marks, in
aggregate, in Physics, Chemistry and Biology, in their respective
qualifying examination, i.e., TBSE, ISCE and CBSE, wherein some of
the writ petitioners, i.e., the present appellants, had secured 70%,
74% etc, marks), they had failed to secure the minimum 40% marks,
in the JEE, as required by the regulations of the MCI. The act of
refusal to admit the writ petitioners (i.e., the present appellants) into
the MBBS course on the ground that the appellants had not secured
40% marks, in the JEE, as indicated hereinbefore, was bad in law,
particularly, when, according to the writ petitioners (i.e., the present
appellants), the requirement of fulfilling the minimum marks of
40%, prescribed under the regulations of the MCI, is, in the light of
the decision, in State of M.P. Vs. Nivedita Jain (AIR 1981 SC 2045),
merely directory and not mandatory and the respondents ought not to
have, therefore, adhered to their decision not to allow the petitioners
to be admitted into the MBBS course on the ground that they had Page No. 11
WP(C) 354/2011 & WA 35/2011
not secured the minimum required marks of 40%, in the said three
subjects, in the JEE.
(v) Resisting the writ petition, which has given rise to the
present appeal, the respondents, in the writ petition, submitted, in
effect, that the regulations of the MCI, when made with the consent
of the Central Government, become statutory in nature and have the
force of law. These regulations, including the regulations, which
prescribe, in respect of the reserved category candidates, securing of
40% marks, in the JEE, as the minimum mark for becoming eligible
for admission into the MBBS course, the same is mandatory in nature
and that the State Government does not have the power to admit,
contrary to the said Regulations, any candidate in its Medical
College. This apart, the respondents pointed out, in the writ petition
(which has given rise to the present appeal), that the regulations of
the MCI were duly published in the official Gazette and must,
therefore, be presumed to be known to all concerned including the
writ petitioners (i.e., the present appellants). The decision, in
Nivedita Jain (supra), pointed out the respondents, which had laid
down that holding of JEE or the prescription of securing minimum
percentage of marks, in the JEE, is merely directory and not
mandatory, has been disagreed to by the Supreme Court in its
subsequent decisions and, hence, the decision, in Nivedita Jain
(supra), can no longer be described as a good law with the result
that the prescription of securing minimum percentage of marks, in Page No. 12
WP(C) 354/2011 & WA 35/2011
the JEE, by even the candidates, belonging to the Scheduled Caste
and Scheduled Tribe, is mandatory in nature and cannot be deviated
from by a State, while admitting candidates into the MBBS course.
(vi) A learned Single Judge of this Court, having found
force in the above submissions, made on behalf of the respondents,
has dismissed the writ petition. Feeling aggrieved, the writ
petitioners are before us in appeal. Thus, the rejection of the
candidature of the writ petitioners (i.e. the present appellants) on the
ground of their failure to secure minimum 40% marks in the JEE,
though each one of them has individually secured more than 40%
marks in Physics, Chemistry and Biology, taken together, in their
respective qualifying examination, namely, TBSE, CBSE and ISCE, was
upheld in the writ petition and it is against this finding and the
dismissal of the writ petition that the present appeal has been
preferred by those, who were the petitioners in the writ petition.
3. Having indicated the case of the appellants, we, now, turn to
the case of those persons, who are writ petitioners in WP(C) No. 354
of 2011. Their case is, in brief, thus: In the State of Tripura, Tripura
State Board is the only State Board, which conducts the qualifying
examination in Higher Secondary (10+2) and, in such a State, no JEE
or combined competitive examination was required to be held inasmuch
as the Regulations 4 and 5 of the MCI, if read together, would clearly
reveal that the basic qualification, for admission into the MBBS
course, is passing of higher secondary or equivalent examination, Page No. 13
WP(C) 354/2011 & WA 35/2011
namely, TBSE, CBSE and ISCE, with not less than 40% marks in
Physics, Chemistry and Biology, in the Higher Secondary (10+2) or
the equivalent examination, these examination having been described
by the MCI’s regulations as the qualifying examination and that in the
case of a State, such as, Tripura, where, there is only one State Board
conducting the qualifying examination, namely, TBSE, holding of the
JEE, which the MCI’s regulations describe as combined competitive
examination, is not at all necessary. The inter se merit list of the
candidates, who obtain requisite marks in the qualifying examination,
shall, therefore, according to these writ petitioners, become the basis
of selection for admission into the MBBS course in a State like
Tripura.
4. In short, what the writ petitioners contend, in the present writ
petition, namely, WP(C) 354/2011, is that in the State of Tripura,
there being only one Board, conducting the qualifying examination, no
joint entrance examination (JEE) or combined competitive examination
is necessary and that inter se merit of the eligible candidates, in the
qualifying examination, shall become the basis for selection for
admission into the MBBS course. These writ petitioners also contend
that in the States, where more than one Board or University or
Examining Body conducts qualifying examination, the holding of
combined competitive examination is, in the light of the decisions, in
Nivedita Jain’s case (supra), optional and even if the combined
competitive examination is required to be held, the requirement of a Page No. 14
WP(C) 354/2011 & WA 35/2011
candidate (belonging to Scheduled Tribe), securing minimum 40%
marks, in Physics, Chemistry and Biology, in combined competitive
examination, cannot be insisted upon, because when a candidate, in a
State, where there is only one University/Board/Examining body
conducting qualifying examination, may, in a given case, receive
admission into the MBBS course if he finds place in the inter se merit
list prepared on the basis of the result of the qualifying examination,
provided that he satisfies the basic pre-requisite of obtaining 40%
marks, in the said three subjects, in the qualifying examination, there is
no reason why a candidate, who has already satisfied the minimum
eligibility criterion of obtaining 40% marks, in the said three
subjects, in the qualifying examination, cannot be selected for
admission into the MBBS course in a State, where there are more
than one University/Board/Examining body for conducting
qualifying examination, if his name finds place in the inter se merit list
prepared on the basis of the result of the combined competitive
examination.
5. Thus, according to these writ petitioners, when the basic
eligibility for admission into the MBBS course is securing of 40%
marks in Physics, Chemistry and Biology, taken together, in the
qualifying examination(s), namely, TBSE, CBSE and ISCE, the
insistence, by the MCI’s regulations, that a candidate, appearing in
the JEE or combined competitive examination, must obtain 40% marks
in the JEE or the combined competitive examination, too, in the said Page No. 15
WP(C) 354/2011 & WA 35/2011
three subjects, in order to become eligible for consideration for
admission into the MBBS course, is discriminatory, irrational,
illogical, arbitrary and does not, therefore, withstand the test of
reasonableness and non-arbitrariness guaranteed under Article 14 of
the Constitution.
6. To put it a little differently, what the writ petitioners, in
WP(C) 359/2011, while challenging the vires and constitutionality of
the MCI’s regulations, contend, is that the basis of selection of
candidates for admission into the MBBS course, in a State, where
there is only one university, board or examining body conducting
qualifying examination, is the requirement of obtaining of minimum
40% marks in Physics, Chemistry and Biology in the qualifying
examination and, consequently, it is possible for a candidate, in such
a State, to enter into the MBBS course if he has satisfied the criterion
of obtaining the minimum of 40% marks in Physics, Chemistry and
Biology in the qualifying examination provided that his name finds
place in the inter se merit list prepared on the basis of the result of
the qualifying examination; whereas, a candidate, in a State, where
there are more than one university, board or examining body
conducting qualifying examination, a candidate, in order to become
eligible for admission into the MBBS course, is required to not only
obtain minimum 40% marks, in the said three subjects, in the
qualifying examination, but he must also obtain, in the combined
competitive examination, 40% marks in the said three subjects, even if Page No. 16
WP(C) 354/2011 & WA 35/2011
his name can be placed in the inter se merit list against the quota
available to him for admission into the MBBS course. Thus, while a
candidate with minimum 40% marks, in the said three subjects, in
the qualifying examination, may enter into the MBBS course in a State,
where there is only one university, board or examining body
conducting qualifying examination, a candidate, in a State, where
there are more than one university, board or examining body
conducting qualifying examination, would become ineligible to get
admission into the MBBS course if he does not secure 40% marks in
the said three subjects, in the combined competitive examination too.
This insistence of obtaining of 40% marks, in the combined competitive
examination, is, according to the writ petitioners, wholly irrational,
unreasonable, arbitrary, discriminatory and the same may, therefore,
not be upheld.
7. We have heard Mr. A.K. Bhowmik, learned Senior counsel,
appearing on behalf of the appellants, and Ms. A. S. Lodh, learned
Govt. Advocate, for the State respondents. We have also heard Mr.
P.K. Biswas, learned ASG, for the MCI.
8. While considering the present appeal as well as the writ
petition, the common grounds of challenge need to be carefully
discerned. It is the stand of the writ appellants as well as the writ
petitioners that in the State of Tripura, there is only one secondary
Board, namely, TBSE, which conducts the qualifying examination and,
hence, it is Regulation 5(5)(i) of the MCI, which ought to have been Page No. 17
WP(C) 354/2011 & WA 35/2011
applied. In other words, according to the appellants as well as the
writ petitioners, the State of Tripura, being a State, which has only
one Education Board, namely, the Tripura State Board, which
conducts the qualifying examination, Tripura shall be taken to be a
State, where one Board is conducting qualifying examination and in
such a case, the requirement of holding of combined competitive
examination, as prescribed by Regulation 5(5)(ii) of the MCI, ought
not to have been insisted upon. The second contention, while
challenging the refusal of the respondents to allow the writ
appellants as well as the writ petitioners’ admission into the MBBS
course, is that even if Regulation 5(5)(ii) is applicable to the State of
Tripura, the application of Regulation 5(5)(ii) is merely directory and
not mandatory. Reliance in support of this contention is placed to
the case of Nivedita Jain (supra).
9. Besides the above two grounds of challenge, which are
common in nature in both the writ appeal as well as writ petition,
the present writ petition puts to challenge the decision of the
respondents on yet another ground and the ground of challenge is
the requirement of Regulation 5(5)(ii) that a candidate, for the
purpose of finding his place in the merit list, prepared on the basis
of the combined competitive examination, must be one, who has
obtained the minimum of 40% marks, in Physics, Chemistry and
Biology, in the combined competitive examination. The requirement of
obtaining 40% marks, in the said three subjects, in the combined Page No. 18
WP(C) 354/2011 & WA 35/2011
competitive examination, has been put to challenge on the ground that
this condition is irrational, unreasonable, discriminatory, wholly
arbitrary and, therefore, does not withstand the test of Article 14
inasmuch as it is possible that in a State, where there is only one
University/Board/ Examining Body, conducting the qualifying
examination, a candidate, who has obtained 40% marks, in the said
three subjects in the qualifying examination, may obtain admission
into the MBBS course by merely securing 40% marks, in the said
three subjects, in qualifying examination, because the merit list is
prepared on the basis of the marks obtained in the qualifying
examination and a candidate, who has obtained merely 40% marks, in
the said three subjects, in the qualifying examination, may find his
place in the inter se merit list, whereas a candidate, in a State, where
there are more than one Board/University/Examining body, which
conducts qualifying examination, is required not only to appear in a
combined competitive examination, but also obtain 40% marks, in the
said three subjects, in the combined competitive examination, too, in
order to receive admission into the MBBS course.
10. The dichotomy, according to these writ petitioners, is that a
candidate, in a State, where there is more than one
University/Board/Examining Body, conducting qualifying
examination, has to, first, satisfy the norm of securing, at least, 40%
marks, in the said three subjects, in the qualifying examination, and,
then, again, he is required to obtain minimum 40% marks, in the Page No. 19
WP(C) 354/2011 & WA 35/2011
said three subjects, in the combined competitive examination too,
though he may have, otherwise, been able to obtain admission on
the basis of the merit list prepared out of the result of the qualifying
examination if he has been a candidate in a State, where there is only
one University/Board/Examining body for conducting qualifying
examination provided his name figured in the inter se merit list
prepared on the basis of the marks obtained in the qualifying
examination. The embargo of securing 40% marks for the second
time, in the said three subjects, in the combined competitive
examination, is, thus, according to these petitioners, wholly
discriminatory, irrational, unreasonable, arbitrary and cannot be
said to withstand the test of Article 14.
11. In other words, according to these writ petitioners,
Regulation 5(5)(ii), which requires not only holding of combined
competitive examination (i.e., JEE), but also prescribes obtaining of
40% marks, in Physics, Chemistry and Biology, taken together, in the
JEE or combined competitive examination, as the minimum qualifying
mark for obtaining admission into MBBS course, is in violation of
Article 14 and what ought to have been done by the MCI, according
to these writ petitioners, was to conduct combined entrance
examination (i.e., JEE) and, on the basis of the marks obtained in such
an examination, inter se merit list ought to have been drawn, as is
done in the case of the State(s), where there is only one
University/Board/Examining Body conducting qualifying Page No. 20
WP(C) 354/2011 & WA 35/2011
examination, and, on the basis of such merit list, candidates ought to
have been admitted into the MBBS course without insisting upon the
condition of securing of 40% marks, in Physics, Chemistry and
Biology, in the combined competitive examination or JEE too. These writ
petitioners contend that when a candidate of every Board, which
conducts qualifying examination, is equally eligible for consideration
for admission into MBBS course on the basis inter se merit list if he
has the minimum qualifying marks of 40%, in Physics, Chemistry
and Biology, taken together, in the qualifying examination(s), namely,
TBSE, CBSE and ISCE, if he is from a State, which has not more than
one University/Board/Examining body conducting qualifying
examination, the insistence by the MCI that even in the combined
competitive examination (i.e., JEE), a candidate must secure 40%
marks, in Physics, Chemistry and Biology for admission into the
MBBS course, is bad in law inasmuch as such a combined entrance
examination (i.e. JEE) is conducted to determine the inter se merit of
the eligible candidates and, in the inter se merit list of the eligible
candidates, if a candidate’s name appears, he ought to be granted
admission into the MBBS course even if he has not secured the
minimum prescribed marks of 40%, in the said three subjects, in the
combined competitive examination (i.e., JEE).
12. In the backdrop of the grievances of the appellants as well as
the writ petitioners, let us, now, determine how far the respondents Page No. 21
WP(C) 354/2011 & WA 35/2011
have been able to meet the challenges posed to their scheme of
selection prescribed by the MCI regulations.
13. For better appreciation of the issue involved, the relevant
portions of Regulations 4 and 5 are reproduced hereinbelow:
“4. Admission to the Medical Course-Eligibility Criteria : No
candidate shall be allowed to be admitted to the Medical Curriculum
proper of first Bachelor of Medicine and Bachelor of Surgery
(MBBS) Course until:
(1) He/she shall complete the age of 17 years on or before 31st
December of the year of admission to the MBBS Course.
(2) He/she has passed qualifying examination as under:
(a) The higher secondary examination or the Indian School
Certificate Examination, which is equivalent to 10+2 Higher
Secondary Examination after a period of 12 years study, the last two
years of study comprising of Physics, Chemistry, Biology and
Mathematics or any other effective subjects with English at a level
not less than the core course for English as prescribed by the
National Council for Educational Research and Training after the
introduction of the 10+2+3 years educational structure as
recommended by the National Committee on education.
5. Selection to Students. The selection of students to medical college
shall be based solely on merit of the candidate and for determination
of merit, the following criteria be adopted uniformly throughout the
country:
(1). In States, having only one Medical College and one
university/board/examining body conducting the qualifying
examination, the marks obtained at such qualifying examination
may be taken into consideration.
(2). In States, having more than one university/board/examining
body conducting the qualifying examination, (or where there is more
than one medical college under the administrative control of one Page No. 22
WP(C) 354/2011 & WA 35/2011
authority) a competitive entrance examination should be held so as
to achieve a uniform evaluation as there may be variation of
standards at qualifying examination conducted by different agencies.
(3). Where there are more than one college in a state and only one
university/board/examining body conducting the qualifying
examination, then a joint selection board be constituted for all the
colleges.
(4). A competitive entrance examination is absolutely necessary in
the cases of institutions of All India character.
5. Procedure for selection to MBBS course shall be as follows:-
i) In case of admission on the basis of qualifying examination under
clause (1) based on merit, the candidate for admission to MBBS
course 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) or
Regulation 4. In respect of candidates belonging to Scheduled
Castes, Scheduled Tribes or Other Backward Classes, the marks
obtained in Physics, Chemistry and Biology taken together in
qualifying examination be 40% instead of 50% as above.
ii) 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) or Regulation 4
and 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
Scheduled Castes, Scheduled Tribes or Other Backward Classes the
marks obtained in Physics, Chemistry and Biology taken together in Page No. 23
WP(C) 354/2011 & WA 35/2011
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 competitive entrance examination
and in case of selection for admission to the MBBS course, he shall
not be admitted to that course until he fulfils the eligibility criteria
under Regulation 4.
The following has been added before the proviso to Clause
5(5)(ii) in terms of notification published on 25.03.2009 and the
same is annexed as Annexure-VIII.
Provided that the eligibility criteria for admission to persons
with locomotors disability of lower limbs in terms of Clause 4(3)
above will be a minimum of 45% marks instead of 50% taken
together in qualifying examination and competitive entrance
examination for admission in MBBS course.”
14. From a cautious and careful reading of Regulations 4 and 5, as
a whole, what clearly transpires is that a candidate, in order to
become eligible for admission into the MBBS course, must not only
have passed the qualifying examination, the qualifying examination
being Higher Secondary examination or an equivalent examination,
but must have also secured minimum 40% marks in Physics,
Chemistry and Biology, taken together, in the qualifying examination.
The Regulations also provide that where there is only one
University/Board/Examining Body, which conducts the qualifying
examination, a candidate, who has secured minimum of 40% marks
in Physics, Chemistry and Biology, taken together, in the qualifying Page No. 24
WP(C) 354/2011 & WA 35/2011
examination, is eligible for admission into the MBBS course and an
inter se merit list of such eligible candidates, who come forward to
take admission into the MBBS course, has to be prepared and if such
a candidate finds place in the inter se merit list, prepared on the basis
of the result in the qualifying examination, he shall become entitled to
receive admission into the MBBS course and there is no other
limitation or restriction on the admission of such a candidate. It is,
therefore, quite possible, in such a State, that a candidate enters into
the MBBS course even if he has obtained only the minimum
required marks of 40%, in Physics, Chemistry and Biology, taken
together, in the qualifying examination. This is the scheme of
Regulation 5(5)(i).
15. As against the above scheme of admission in a State, wherein
there is only one University/Board/Examining Body, which
conducts the qualifying examination, Regulation 5(5) (ii) imposes
further restrictions, for the purpose of admission into the MBBS
course, in the case of a State, wherein more than one
University/Board/Examining Body conduct the qualifying
examination. The condition, laid down by Regulation 5(5)(ii), is that
there must be combined competitive examination, popularly known as
Joint Entrance Examination (or JEE), and a candidate, belonging to
Scheduled Caste or Scheduled Tribe, in such a State, must, apart
from having secured 40% marks, in Physics, Chemistry and Biology,
taken together, at the qualifying examination, secure 40% marks, in Page No. 25
WP(C) 354/2011 & WA 35/2011
Physics, Chemistry and Biology, taken together, in the combined
competitive examination (i.e., JEE) too.
16. More elaborately speaking, as against the above scheme
meant for admission, where there is only one
University/Board/Examining Body, which conducts the qualifying
examination, Regulation 5(2) read with Regulation 5(5)(ii) provides
that where there are more than one University/ Board/ Examining
Body, which conduct the qualifying examination, a combined
competitive examination should be held so as to achieve a uniform
evaluation as there may be variation of standards at the qualifying
examination conducted by the different agencies and, in this regard,
Regulation 5(5)(ii) further lays down that in such a case, a candidate,
belonging to Scheduled Caste or Scheduled Tribe, is required not
only to secure, at least, 40% marks in Physics, Chemistry and
Biology, taken together, at the qualifying examination, but he must, in
order to become eligible for consideration for admission into the
MBBS course, obtain a minimum of 40% marks in Physics,
Chemistry and Biology, taken together, at the combined competitive
examination, too.
17. Thus, the language, used in Regulation 5(1) read with
Regulation 5(5)(i) vis-a-vis Regulation 5(2) read with Regulation
5(5)(ii), makes it abundantly clear that if there is a State, where there
is only one University/Board/Examining Body, which conducts the
qualifying examination, then, the marks, obtained at such a qualifying Page No. 26
WP(C) 354/2011 & WA 35/2011
examination, will be the basis for selection for admission into the
MBBS course subject to the condition that a candidate, belonging to
reserved category, in such a State, ought to have obtained a
minimum of 40% marks in Physics, Chemistry and Biology, taken
together, at the qualifying examination, but where there are more than
one University/Board/Examining Body, which conduct the
qualifying examination, there should be a combined competitive
examination so as to achieve a uniform evaluation. In such a combined
competitive examination, in order to obtain admission into the MBBS
course, a general category candidate must secure a minimum of 50%
marks, taken together, in Physics, Chemistry and Biology; whereas a
candidate, belonging to Scheduled Caste or Scheduled Tribe or
Other Backward Classes, must obtain, at least, 40% marks in Physics,
Chemistry and Biology, taken together, in the qualifying examination
as well as the competitive entrance examination.
18. What emerges from the above discussion is that Regulation
5(1) read with Regulation 5(5)(i), while laying down the procedure
for selection of candidates for admission into the MBBS course,
makes it clear that the State, where there is only one
University/Board/Examining Body, which conducts the qualifying
examination, a candidate, belonging to Scheduled Caste or Scheduled
Tribe, would receive admission into the MBBS course in terms of the
inter se merit list of the candidates prepared on the basis of the result
in the qualifying examination even if he has secured merely 40% Page No. 27
WP(C) 354/2011 & WA 35/2011
marks in Physics, Chemistry and Biology in the qualifying
examination inasmuch as there is no further examination, in the form
of combined competitive examination or JEE, and no requirement of
further cut-off mark.
19. What is, now, imperative to note, which is transparent from
the case of the appellants themselves, is that as many as 9 of them
have passed the qualifying examination conducted by the TBSE, 6 of
them have passed the qualifying examination conducted by the CBSE
and the remaining two have passed the qualifying examination
conducted by the ISCE. Clearly, therefore, there are three Boards,
which are conducting the qualifying examination in the State of
Tripura. Thus, in Tripura, it is Regulation 5(2) read with Regulation
5(5)(ii), which would be applicable and have been applied in the
present case.
20. Referring to Nivedita Jain (supra), it has been contended, on
behalf of the appellants, by Mr. Bhowmik, learned Senior counsel,
that even in a State, where there are more than one
University/Board/Examining Body conducting qualifying
examination, it is not mandatory to hold a combined competitive
examination inasmuch as Regulation 5(ii) is merely directory and not
mandatory. Suffice it to point out, in this regard, that much water has
flown since the decision, in Nivedita Jain (supra), was rendered and
in Dr. Preeti Srivastava and another Vs. State of M.P. and others
(1999) 7 SCC 120, a Constitution Bench of the Supreme Court has Page No. 28
WP(C) 354/2011 & WA 35/2011
overruled the decision, in Nivedita Jain (supra), by holding that
Regulation 5(ii) is not merely directory, but mandatory.
21. There can, therefore, be no escape from the conclusion, in the
light of the decision in Dr. Preeti Srivastava (supra), that so long as
Regulation 5(5)(ii) is treated as valid in its entirety, there ought to
have been held, and has been rightly held, in the State of Tripura,
combined competitive examination (i.e., JEE) for admission into the
MBBS. If Regulation 5(5)(ii) is found valid, as a whole, the
respondents cannot be said to have committed any illegality in
conducting combined competitive examination or JEE or in refusing to
admit the writ petitioners as well as the appellants into the MBBS
course on the ground that they have not been able to secure, at least,
40% marks in Physics, Chemistry and Biology, taken together, in the
combined competitive examination or JEE, though they have obtained
40% marks, in the said three subjects in the qualifying examination.
22. It further follows from the above discussion that the
contention of the appellants that in the State of Tripura, TBSE is the
only Board, which conducts the qualifying examination and
Regulation 5(2) read with Regulation 5(5)(ii) is not attracted, has no
substance at all inasmuch as Tripura is a State, wherein more than
one Board, as already indicated hereinabove, have been conducting
the qualifying examination and, hence, the combined competitive
examination or JEE, as perceived by Regulation 5(2) read with Page No. 29
WP(C) 354/2011 & WA 35/2011
Regulation 5(5)(ii), is mandatory provided that this Court upholds the
Regulation 5(5)(ii) in its entirety.
23. Considering the fact that Tripura is a State, where more than
one Board conducts and has been conducting the qualifying
examination and Regulation 5(5)(ii) is applicable, it logically follows
that so long as Regulation 5(ii) is treated as valid in its entirety, a
candidate, belonging to Scheduled Tribe, ought to obtain, at least,
40% marks, in the said three subjects, in the combined competitive
examination or JEE in order to become eligible for admission into the
MBBS course; and the mere fact, that seats are still lying vacant,
cannot be a ground or reason for demanding that the requirement of
securing 40% marks, in the said three subjects, in the JEE or combined
competitive examination, be not insisted upon.
24. As neither the appellants nor the writ petitioners, which has
given rise to WP(C) No. 354 of 2011, have obtained the minimum of
40% marks in the competitive entrance examination or JEE, as
envisaged by Regulation 5(5)(ii), they were not eligible and have
rightly not been treated as eligible for admission into the MBBS
course provided that Regulation 5(5)(ii) is upheld by this Court as a
valid piece of Regulation in its entirety.
25. Let us, therefore, now, determine if Regulation 5(5)(ii) is a
valid piece of Regulation.
26. The thrust of the various decisions and the character of the
judicial pronouncements, on the question of nature of applicability Page No. 30
WP(C) 354/2011 & WA 35/2011
of the regulations of the MCI, is that Medical Council of India is a
creature of the Indian Medical Council Act, which is a piece of
legislation relatable to Entry 66 of List I of the Union List. Any
legislation, made pursuant to Entry 66 List I, shall prevail upon the
State enactment to the extent that the State enactment, which is
made pursuant to Entry 25 or 26 of the List III (Concurrent List), is
repugnant to the legislation made under Entry 66. The Regulations,
made by the Medical Council of India with the approval of the
Central Government, acquire statutory force. Reference, in this
regard, may be made to Medical Council of India Vs. State of
Karnataka and others, reported in (1998) 6 SCC 131.
27. There is no dispute, in the present case, that the Regulations,
made by the MCI, would prevail on the State legislation, if any, or
on the State’s scheme, if any, for admission into the MBBS course.
What was, however, contended, as already indicated above, in the
writ petition, which has given rise to the appeal, is that Regulation
5(5)(ii) of the MCI, which insists that a candidate must secure a
minimum of 40% marks, in the said three subjects, in the combined
competitive examination in order to become eligible for consideration
for admission into the MBBS course, is not mandatory. Reliance, in
support of this proposition, as has been noticed, was placed on State
of M.P. Vs. Nivedita Jain (AIR 1981 SC 2045). The decision, in
Nivedita Jain (supra), has, however, been disagreed to, and Page No. 31
WP(C) 354/2011 & WA 35/2011
specifically overruled, in Dr. Preeti Srivastava (supra), wherein the
Constitution Bench, at para 56, has observed and held thus:
“56. In State of M.P. Vs. Nivedita Jain (1981) 4 SCC 296,
the provisions of the Indian Medical Council Act and the regulations
framed for undergraduate medical courses were considered by the
Court. The Court said that while Regulation I was mandatory,
Regulation II was only recommendatory and need not be followed.
We do not agree with this line of reasoning for the reasons which we
have set out above.”
28. What emerges clearly is that Regulations of the MCI would
prevail if legislation of a given State comes in conflict with the MCI
Regulations.
29. What also clearly emerges from the above discussion is that
Regulation 5(5) (ii) requiring holding of the combined competitive
examination for admission into the MBBS course in a State, where
more than one University/Board/Examining Body conducts the
qualifying examination, is mandatory. These two aspects cannot be
disputed and have, at the end of the hearing, not, in fact, been
disputed.
30. The question, which, however, remains to be decided is:
whether the prescription of securing 40% marks in Physics,
Chemistry and Biology by candidates belonging to Scheduled Caste
or Scheduled Tribe, in the said three subjects, in the combined
competitive examination, is a valid condition, when a counterpart of
such a candidate would be qualified to be admitted into the MBBS
course if his name falls in the inter se merit list prepared on the basis Page No. 32
WP(C) 354/2011 & WA 35/2011
of the marks obtained in the qualifying examination alone provided
that he has obtained 40% marks, in the said three subjects, in the
qualifying examination. It is, thus, the vires of the Regulation 5(5)(ii),
which is under challenge in the writ petition, namely, WP(C)
254/2011.
31. While considering the above aspect of the matter, it needs to
be noted that in Visveswaraiah Technological University and
another Vs. Krishnendu Halder and others, reported in (2011) 4
SCC 606, the Supreme Court, having clearly held that the All India
Council for Technical Education (AICTE), which has been
established under All India Council for Technical Education Act,
1987, for proper planning and coordinated development of technical
education throughout the country is competent to make rules
governing admission into higher education and that determination
of standards fixed by them are beyond the purview of judicial
review, has, nevertheless, pointed out that non-interference in exercise
of power of judicial review is hedged by the condition that standard
fixed shall not be arbitrary. The relevant observations, made in this
regard, which appear at para 17, read as under:
“17. No student or college, in the teeth of the existing and prevalent
rules of the State and the University can say that such rules should
be ignored, whenever there are unfilled vacancies in colleges. In fact,
the State/University may, in spite of vacancies, continue with the
higher eligibility criteria to maintain better standards of
higher education in the State or in the colleges affiliated to Page No. 33
WP(C) 354/2011 & WA 35/2011
the University. Determination of such standards, being part
of the academic policy of the University, are beyond the
purview of judicial review, unless it is established that such
standards are arbitrary or “adversely affect” the standards, if
any, fixed by the central body under a Central enactment. The
order of the Division Bench is, therefore, unsustainable.”
[Emphasis supplied]
32. From what has been observed, in Visveswaraiah
Technological University’s case (supra), it becomes abundantly
clear and leaves no room for doubt that the Constitutionality of a
regulation of the MCI can be challenged on the ground that it is
arbitrary. The question, therefore, which we have to, now, determine
is: Whether Regulation 5(5)(ii) is rational, non-arbitrary, reasonable
and can withstand the test of Article 14.
33. While considering the above aspect of the case, it needs to be
very carefully noted that a candidate, who has passed the qualifying
examination, conducted by any of the University/Board/Examining
Body, is eligible for admission into the MBBS course if he has
obtained a minimum of 40% marks in Physics, Chemistry and
Biology, taken together, in the qualifying examination, provided that
he finds a place in the inter se merit list prepared on the basis of the
marks obtained in the qualifying examination.
34. A minute reading of Regulation 5(5)(ii) leaves no room for
doubt that combined competitive examination has been insisted upon,
and rightly so, in order to achieve a uniform evaluation as there may Page No. 34
WP(C) 354/2011 & WA 35/2011
be variation of standards at various qualifying examination conducted
by different agencies.
35. Thus, it is merely to bring uniformity in the evaluation that
the combined competitive examination is conducted so that inter se
merit list of these candidates can be prepared, who have passed,
with minimum required marks, the qualifying examination from
various Universities/Boards/Examining Bodies and have sought for
admission into the MBBS course.
36. Was it, then, reasonable and rational, on the part of the MCI,
to fix 40% as minimum required marks, in Physics, Chemistry and
Mathematics, in the combined competitive examination, too, for
obtaining admission into the MBBS course ? The irrationality, in this
requirement, can be illustrated thus: Let us assume that Tripura is a
State, wherein it is TBSE alone, which conducts the qualifying
examination; Assam is a State, where, let us assume, it is only the
CBSE, which conducts the qualifying examination and, similarly, West
Bengal, let us assume, is a State, wherein ISCE is the only body,
which conducts the qualifying examination. A candidate, in any of
these States, can get admission into their Medical College if he
secures a minimum of 40% marks, in Physics, Chemistry and
Biology in the qualifying examination, provided that he falls in the
inter se merit list drawn on the basis of the marks obtained by the
candidates in the qualifying examination. It can also be clearly seen
that the results of the qualifying examination, held by each of the Page No. 35
WP(C) 354/2011 & WA 35/2011
bodies, which conducts the said qualifying examination, can become
the basis for drawing inter se merit list of the candidates for
admission into the MBBS course. Consequently, in such a case, even
a candidate, who has obtained the minimum requisite marks of 40%,
in the said three subjects, in the qualifying examination, can get
admitted into the MBBS course if his name finds place in the inter se
merit list drawn on the basis of the result of the qualifying
examination. Let us, now, assume that the same candidate moves
over to, say, the State of U.P., where more than one University,
Board or the Examining Body conducts the qualifying examination. In
such circumstances, on the basis of the combined entrance examination,
a merit list is drawn. This merit list is drawn only out of the
candidates, who have secured, if he belongs to Scheduled Caste or
Scheduled Tribe, the minimum required marks of 40% in Physics,
Chemistry and Biology in the qualifying examination.
37. Ordinarily, on the basis of the merit list, prepared by holding
combined competitive examination, admission into the MBBS course
ought to have been granted, because each of the candidates, who
participates in the combined competitive examination, has already
obtained the minimum required marks of 40%, in the said three
subjects, in the qualifying examination as is done in the case of a State,
wherein only one University, Board or examining Body conducts the
qualifying examination. Why the MCI Regulations insist on securing
40% marks by a candidate, in the combined competitive examination, Page No. 36
WP(C) 354/2011 & WA 35/2011
too, is not discernible from the Regulations, when there is no such
restriction or requirement imposed in the case, where there is only
one University, Board or examining Body, which conducts the
qualifying examination. To a pointed query made by this Court, even
Mr. Biswas, learned ASG, could not explain as to why the MCI has
insisted that a candidate, appearing in the combined competitive
examination, must secure 40% marks in the said three subjects, in the
combined competitive examination, even if the candidate is one, who
has secured 40% marks, in Physics, Chemistry and Biology, in the
qualifying examination, whereas a candidate, who has secured 40%
marks, in Physics, Chemistry and Biology, taken together, in the
qualifying examination (in a State, where only one University/
Board/Examining Body conducts the qualifying examination) can get
admission into the MBBS course if his name finds place in the inter se
merit list prepared on the basis of the result of the qualifying
examination alone.
38. Thus, there is no reason as to why a candidate, appearing in
the combined entrance examination, who has already satisfied the
requirement of obtaining minimum 40% marks, in Physics,
Chemistry and Biology, in the qualifying examination, must also
obtain minimum 40% marks, in the said three subjects, in the
combined competitive examination. Logically speaking, if, in the
combined competitive examination, such a candidate falls within the
merit list prepared on the basis of the marks obtained in the combined Page No. 37
WP(C) 354/2011 & WA 35/2011
competitive examination, he ought to be granted admission into the
MBBS course and if he is to be denied admission, then, the MCI
must explain the reason for doing so and the reason assigned must
be rational.
39. In the present case, the MCI has completely failed to assign
any reason, far less convincing and plausible reason, for insisting
upon securing of minimum 40% marks by Scheduled Caste and
Scheduled Tribe candidates in the combined entrance examination too.
40. It has been faintly attempted by Mr. P.K. Biswas, learned ASG,
to suggest that the idea of insisting upon 40% marks, in the said
three subjects, in the combined competitive examination, is to secure
best of the candidates on merit. This claim, made by Mr. Biswas, on
behalf of the MCI, falls flat, when one notices that a candidate,
belonging to Scheduled Caste or Scheduled Tribe, has the possibility
of entering into the MBBS course in the State, where only one
University/Board/Examining Body has conducted the qualifying
examination, if such a candidate has secured minimum 40% marks, in
Physics, Chemistry and Biology, in the qualifying examination and his
name finds place in the merit list drawn on the basis of the marks
obtained by the candidates in the qualifying examination. This is
precisely what has been in the present case. Similarly, therefore,
after holding combined entrance examination in the States, where more
than one University/Board/Examining Body have been conducting
the qualifying examination, a candidate ought to be selected on the Page No. 38
WP(C) 354/2011 & WA 35/2011
basis of inter se merit list drawn of such candidates, because every
candidate, in the combined competitive examination, has already
satisfied the minimum prescribed requirement of securing of 40%
marks, in Physics, Chemistry and Biology, taken together, in the
qualifying examination. If, in the combined competitive examination, he
does not find place in the inter se merit list as against the quota
available to him, then, such a candidate can have no grievance; but,
if he, otherwise, finds place in the merit list against the quota meant
for him, he cannot, without a rational cause, be denied admission
into the MBBS course, when he has already satisfied the requirement
of obtaining entry into the MBBS course by securing the required
minimum 40% marks, in Physics, Chemistry and Biology, in the
qualifying examination. The purpose of holding the combined
competitive examination ought to have been only to prepare an inter
se merit list of the various candidates, who had appeared in the
qualifying examinations conducted by various University/
Board/Examining bodies. No reason could be assigned, as already
indicated above, as to why there shall be insistence on obtaining 40%
marks by a candidate, in Physics, Chemistry and Biology, in the
combined competitive examination for getting admission into MBBS
course.
41. It needs to be, now, noted that though the regulations, framed
by the MCI, have been upheld by the Supreme Court in its various
judicial pronouncements, the fact of the matter remains that in nonePage No. 39
WP(C) 354/2011 & WA 35/2011
of the decisions, cited and relied upon, the constitutionality and/or
vires of the Regulation 5(5)(ii) have been put to challenge. When the
issue has not specifically been raised and has not been decided, the
constitutionality of the MCI’s Regulation 5(5)(ii) remains open for
challenge on the ground of its irrationality. Considered in this light,
it is open to this Court to determine if the insistence by the MCI that
a candidate, who appears in the combined competitive examination,
must secure, in order to be able to enter into MBBS course,
minimum of 40% marks, in the said three subjects, in the combined
competitive examination, is irrational, when there is no such
restriction, under Regulation 5(5)(i), in respect of a candidate of a
State, where there is only one University/Board/Examining Body,
which conducts the qualifying examination. The logic for having two
different standard is not discernable, when we find that as many as
20 seats, in the quota meant for the candidates of Scheduled Tribe,
belonging to the State of Tripura, have remained without being
filled up due to the condition so imposed by Regulation 5(5)(ii),
whereas all the appellants would have been admitted into the MBBS
course, in the State of Tripura, if there would have been only one
University/Board/Examining Body, conducting the qualifying
examination. It needs to be borne in mind that, in order to pass the
test of Article 14, it is not enough for the State to assign „a‟ reason;
every reason, assigned by the State, must be rational and convincing.
In the present case, the MCI has miserable failed to disclose the Page No. 40
WP(C) 354/2011 & WA 35/2011
rationality behind introducing the cut-off mark of 40% in the
combined competitive examination or JEE too.
42. Because of what have been discussed and pointed out above,
What becomes clear, and we do hold, is that the MCI Regulation
5(5)(ii) is in violation of Article 14, which guarantees equality of
treatment, so far as Regulation 5(5)(ii) requires securing of 40%
marks in the combined competitive examination as the basis for
selection for admission into the MBBS course.
43. In the result and for the reasons discussed above, the appeal
as well as the writ petition succeed. The respondents are hereby
directed to prepare a merit list of the candidates on the basis of the
marks obtained by them, in the combined competitive examination
(JEE), and those candidates, who find their place in the merit list, so
prepared against their respective quota of seats, shall be admitted
into the MBBS course within a week from today.
44. With the above observations and directions, this appeal and
the writ petition shall stand disposed of.
45. No order as to costs.
JUDGE JUDGE
dutt-Paul-rkPage No. 41
WP(C) 354/2011 & WA 35/2011