HARISH VERMA AND ORS.versusAJAY SRIVASTAVA AND ANR.

                     HARJSH VERMA AND ORS.                                 A
                                     v.
                   AJAY SRJVASTAVA AND ANR.

                         SEPTEMBER 16, 2003

               [R.C. LAHOTI AND ASHOK BHAN, JJ.]                           B

     Education :

     Post Graduate Medical Education Regulations, 2000: Regulation 9.
Medical Admission-Post Graduate Medical Courses-Minimum percentage C
of marks-Fixing offor in-service doctors-First proviso to Regulation 9
prescribed a certain minimum percentage of marks for admission to Post
Graduate medical courses-In-service doctors i.e., the graduate doctors
serving in the State filed a writ petition in the High Court challenging the
validity of Regulation 9-Full Bench of High Court held that Regulation D
9 did not have any binding force, that the State had power to prescribe
a lower percentage of marks for in-service candidates and that Regulation
9 did not apply to them--Correctness of-Held : The requirement of
minimum qualifj;ing marks for in-service candidates could neither be
lowered nor relaxed contrary to Medical Council of India Regulations-
Decision of High Court set aside-Indian Medical Council Act, 1956.           E
     Constitution of India, 1950 :

     Article I41-Law laid down by Supreme Court-Decision rendered
by Full Bench of High Court ignoring the majority view of Constitution F
Bench and relying on the minority view-Validity of-Held: Invalid-The
Full Bench could not have relied on minority view overlooking the majority
view which was the law laid down by the Constitution Bench and which
had binding force.

     The respondents-in-service-doctors (i.e. the graduate doctors who
                                                                           G
were serving under the State) filed a writ petition in the High Court
challenging the validity of the first proviso to Regulation 9 of the Post
Graduate Medical Education Regulations, 2000 that prescribed a
certain minimum percentage of marks for admission to the post
graduate medical courses.                                                 H
                                     833
    834                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A        The Full Bench of the High Court held that the Regulations
    framed by the Medical Council of India had only a persuasive value
    and did not have any binding force insofar as the State Government
    was concerned. The State had the power to prescribe a lower percentage
    of marks for in-service candidates and that Regulation 9 did not apply
B   to in-service candidates. Hence this appeal by the appellants-general
    category candidates.

          On behalf of the appellants, it was contended that the Full Bench
    of the High Court erred in ignoring the majority view of the decision
    of this Court in Dr. Preeti Srivastava v. State of M.P., (1999) 7 SCC 120
C   and relying on the minority view.

          Allowing the appeal, the Court

         HELD: 1. The Full Bench of the High Court could not have relied
    on the dissenting opinion of one Judge, overlooking the majority
D   opinion, which is the law laid down by the Constitution Bench and has
    binding force. (841-D)

          Dr. Preeti Srivastava v. State of M.P., [1999) 7 SCC 120, followed.

E        2. There can be only one common entrance test for determining
    the eligibility for post graduation 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. [842-G-H)

F         State of M.P. v. Gopal D. Tirthani, JT (2003) 6 SC 204, relied on.

         3. The decision of the Full Bench of the High Court, having been
    rendered in ignorance of the binding law laid down by the majority
    opinion in the Constitution Bench decision of this Court in Dr. Preeti
G   Srivastatva v. State ofM.P., (1999) 7 sec 120 and also being inconsistent
    with the decision of this Court in State of M.P. v. Gopal D. Tirthani, JT
    (2003) 6 SC 204, is liable to be set aside. (843-C)

          Dr. Preeti Srivastava v. State ofM.P., (1999) 7 SCC 120, followed.

H         State of M.P. v. Gopal D. Tirthani, JT (2003) 6 SC 204, relied on.
         HARISH VERMA v. AJAY SRIVASTAVA [LAHOTI, J.]                      835

       Ajay Kumar Singh v. State of Bihar, [I 994) 4 SCC 401, referred to. A

       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1807 of
2003

     From the Judgment and Order dated 5.2.2003 of the Rajasthan High
Court in D.B.C.S.A. (W) No. 503 of 2002.                                           B
                                     WITH

       C.A. Nos. 1808, 7405, 7406-7430 of 2003.

      Ms. lndu Malhotra, Mrs. Pooja Chandra, Maninder Singh,
                                                                                   c
Mrs. Pratibha M. Singh, Ankul Talwar, Angad Mirdha, Salman Khursheed,
Ajay Choudhary, Ranji Thomas, Mrs. Bharati Upadhyaya, A.K. Shukla,
V.N. Raghupathy, Manoj Swarup, Ms. talita Kohli and Anubhav Kumar
for the Appearing parties.
                                                                                   D
       The Judgment of the Court was delivered by

       R.C. LAHOTI, J. : Leave granted in SLP (C) Nos. 4965/03 and
14367-91/03.

     In exercise of the powers conferred by Section 33 read with Section E
20 of the Indian Medical Council Act, 1956, the Medical Council oflndia
has, with the previous sanction of the Central Government, made the
regulations called "the Post Graduate Medical Education Regulations
2000" (hereinafter the Regulations, for short). Regulation 9, relevant for
our purpose, provides as under :                                           F
       9. SELECTION OF POSTGRADUATE STUDENTS

           ( 1)   Students for postgraduate medical courses shall be selected
                  strictly on the basis of their academic merit.
                                                                                   G
          (2)     For determining the academic merit, the university/institution
                  may adopt any one of the following procedures both for
                  degree and diploma courses :

           (i)    On the basis of merit as determined by a competitive test H
    836                    SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A                   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)   On the basis of merit as determined by a          centralized
B                   competitive test held at the national level; or

             (iii) On the basis of the individual cumulative performance at the
                   first, second and third MBBS examinations, if such
                   examinations have been passed from the same university; or

c            Provided that wherever entrance test for postgraduate admission
             is held by a state government or a university or any other
             authorized examining body, the minimum percentage ofmarks for
             eligibility for admission to postgraduate medical course shall be
             50 per cent for general category candidates and 40 per cent for
D            the candidates belonging to Scheduled Castes, Scheduled Tribes
             and Other Backward Classes :

             Provided further that in non-government institutions fifty percent
             of the total seats shall be filled by the competent authority and
E            the remaining fifty percent by the management of the institution
             on the basis of merit.
                                                           (emphasis supplied)

          The first proviso to Regulation 9 in its present form was introduced
F with effect from 20.9.2001. Earlier the first proviso required the minimum
    percentage of marks for eligibility as 50 per cent for all the categories of
    candidates.

        In the first week of March 2002 the University ofRajasthan published
  a notification announcing the holding of pre-PG examination on 21.4.2002.
G The minimum qualifying marks were notified as 50 per cent for general
  category candidates and 40 per cent for SC/ST/OBC candidates
  consistently with the first proviso to Regulation 9. The examination was
  held on 21.4.2002. The result of the examination was declared on the
  next day.
H
       HARISH VERMA v. AJAY SRIVASTAVA [LAHOTI, J.]                     837

      On 29.4.2002 several in-service doctors (i.e the graduate doctors who A
were serving under the State of Rajasthan) filed a writ petition laying
challenge to the constitutional validity of the first proviso to Regulation
9 and seeking its being declared ultra vires in its applicability to in-service
candidates. In the alternative, it was prayed that the first proviso abovesaid
be declared as inapplicable insofar the seats meant for in-service candidates B
in postgraduate medical courses are concerned. Consistently with such
declaration it was prayed that the result be declared afresh and that the in-
service candidates be declared to have qualified for entrance in PG degree/
diploma courses without insisting on the prescribed minimum qualifying
marks. Several such writ petitions were filed. It is significant to note that C
the writ-petitioners before the High Court were all such doctors who were
serving in the State services and who had participated in the pre-PG
examination but had failed in securing the minimum qualifying marks as
prescribed by the first proviso to Regulation 9 and the notification dated
2nd March, 2002. The High Court issued rule nisi and also passed an
interim order to the effect that the unfilled seats in the in-service category D
shall be kept vacant during the pendency of the proceedings.

      The State of Rajasthan, the University of Rajasthan and the Medical
Council of India were all impleaded as parties. In their respective counter-
affidavits they supported the validity of Regulation 9 along with its E
provisos and submitted that the High Court ought not to modify or make
departure from the statutory regulations framed by the Medical Council of
India and the standards laid down by it in the interest of medical profession.

     A learned Single Judge of the High Court who heard a batch of 44
similar writ petitions directed all the petitions to be dismissed upholding F
the validity of the impugned Regulation.

     The writ-petitioners, being aggrieved by the judgment of the learned
Single Judge, preferred several intra-court appeals under Section 18 of the
Rajasthan High Court Ordinance. On 28.8.2002 the Division Bench framed G
the following questions of law and opining the questions to be of
considerable importance directed all the appeals to be placed for hearing
before a Full Bench :

      I. Whether any reserved quota could not be separately specified for H
    838                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A in-service candidates; merely because such in-service category is not
    mentioned in Article 15(4) of the Constitution of India?

         2. Whether the prescribing of a separate quota for in-service candidates
    withstands the test of reasonable classification under Article 14 of the
B   Constitution of India?

          On 5.2.2003, vide the judgment impugned herein, the High Court has
    allowed the appeals and set aside the judgment of the learned Single Judge.
    During the course of its judgment the Full Bench has held that the
    Regulations framed by the Medical Council oflndia have only a persuasive
C   value and do not have any binding force in so far as the State Government
    is concerned. The State has the power to prescribe a lower percentage of
    marks for in-service candidates. Regulation 9 does not apply to in-service
    candidates. However, the Full Bench held that as the minimum qualifying
    marks for in-service candidates could not have a wide disparity with the
D   marks prescribed for general category candidates. It directed that it shall
    be open to the State Government to go ahead with the admission of in-
    service candidates to the postgraduate courses on the basis of such
    percentage of qualifying marks which may be lower than 50 per cent but
    not below 40 per cent, which is the minimum eligibility percentage
E   prescribed for the reserved category candidates.

         These are the appeals filed by special leave by the general category
    candidates and the Medical Council of India.

          On 24.2.2003 leave to appeal was granted under Article 136 of the
F Constitution. The appellants had sought staying of the operation of the
  judgment of the Full Bench of the High Court being stayed. Prayer for
  interim relief being allowed ex-parte was refused by the Court and notice
  was directed to be issued to the respondents. On 4.4.2003 counselling was
  held and 126 seats were filled. 75 students from the in-service category
  who had secured marks between 40 and 50 per cent participated in the
G counseling and have been allotted seats, subject to an undertaking filed by
  each one of them that the judgment of this Court whenever pronounced
  shall be binding on them. During the pendency of these appeals the process
  of admission against PG seats for the year 2003 has been completed. 80
  in-service candidates have been allotted seats, out of whom only 18
H candidates have cleared the 50 per cent eligibility criteria. The remaining
       HARISH VERMA v. AJAY SRIVASTAVA [LAHOTI, J.]                    839

62 candidates are ineligible as per the first proviso to Regulation 9. The A
counseling for 2003 candidates has been held on 28/29.8.2003.

      When the matter came up for hearing on 19.8.2003 it was brought
to the notice of the Court that various candidates who have been declared
successful at the pre-PG examination in accordance with the judgment of B
the Full Bench of the High Court and who may be dislodged in the event
of the appeals being allowed were not noticed. The Secretary, Medical and
Health Department, State of Rajasthan, was directed to notify on the Notice
Board of all the medical colleges in the State of Rajasthan the factum of
filing of these appeals and of their coming up for hearing, putting the
candidates on notice that they could enter appearance and participate in the C
hearing, if so advised, so as to defend themselves. That compliance has
been done. However, none of such in-service candidates have chosen to
appear.

      We have heard Ms. Indu Malhotra, the learned counsel for the D
appellants (general category non-service doctors), Mr. Salman Khursheed,
the learned counsel for the private respondents who were the writ-
petitioners in the High Court, Mr. Ranji Thomas, the learned counsel for
the State of Rajasthan, Mr. Maninder Singh, the learned counsel for the
Medical Council of India, and all other learned counsel appearing for the
parties.                                                                  E
      Ms. Indu Malhotra, the learned counsel for the appellants (private
respondents in the High Court) has carried the Court through the judgment
of the Full Bench of the High Court to demonstrate the gross error of law
unwittingly committed by the High Court in ignoring the majority view F
of the constitution Bench decision of this Court in Dr. Preeti Srivastava
and Anr. v. State of MP. & Ors., [1999) 7 SCC 120. Instead, the learned
counsel submitted, the Full Bench has quoted a few passages frcm the
minority opinion from Dr. Preeti Srivastava 's case (supra) which is at
variance with the majority opinion, and therefore, the judgment stands
vitiated. It was further submitted that a recent decision of this Court in The G
State of Madhya Pradesh & Ors. v. Gopal D. Tirthani & Ors., JT (2003)
6 SC 204 clinches the issue and applies squarely to the facts of the present
case, and therefore also the impugned judgment has to be reversed. We find
merit in the submissions so made.
                                                                             H
    840                  SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.
A         It will be useful to extract and reproduce the law laid down by the
    majority consisting of four learned Judges speaking through Sujata Manohar,
    J. in Dr. Preeti Srivastava's case (supra). It was held

          (i) the Indian Medical Council Act, 1956, especially the provisions
B contained in Sections 16 to 20 of the Act empower the Council to prescribe
  the minimum standards of medical education required for granting
  recognized medical qualifications other than post-graduate medical
  qualifications by the Universities or medical institutions, as also to
  prescribe the minimum standards of postgraduate medical education. The
  Universities must necessarily be guided by the standards prescribed under
C Section 20( I) if their degrees or diplomas are to be recognized under the
  Medical Council of India Act. An earlier decision of this Court in Ajay
  Kumar Singh and Ors. v. State ofBiharand Ors., [1994] 4 SCC 401 taking
  the view that the standards of postgraduate medical education prescribed
  by the Medical Council of India are merely directory and the Universities
D are not bound to comply with the standards so prescribed was overruled
  (para 55);

         (ii) The Medical Council Regulations have statutory force and are
    mandatory. The Act contemplates the Medical Council of India having
    been set up as an expert body to control the minimum standards of medical
E   education and to regulate their observance. It has implicit power to
    supervise the qualifications or eligibility standards for admission to
    medical institutions. The Medical Council has to keep overall vigilance to
    prevent sub-standard entrance qualifications for medical courses. These
    observations apply equally to postgraduate medical courses (para 57);
F
          (iii) A common Entrance Examination envisaged under the Regulation
    framed by the Medical Council of India for postgraduate medical education
    requires the fixing of minimum qualifying marks for passing the examination
    since it is not a mere screening test;
G       (iv) Whether any lower minimum qualifying marks (than the one
  prescribed by the first proviso to Regulation 9) can be prescribed at the
  postgraduate level of medical education is a question which must be
  decided by the Medical Council of India since it affects the standards of
  postgraduate medical education. Prescribing the percentage of 20 per cent
H for the reserved category and 45 per cent for the general category is not
        HARISH VERMA v. AJAY SRIVASTAVA [LAHOTI, J.]                  841
pennissible; the same being unreasonable at the postgraduate level and A
contrary to the public interest.

       However, the Full Bench of the High Court has referred to several
observations made vide para 77 and para 116 of Dr. Preeti Srivastava 's
case (supra) wherein the dissenting opinion has disagreed with the
conclusions reached by the majority that the fixing of minimum qualifying B
marks for passing the entrance test for postgraduate course is concerned
with the standards of postgraduate medical education. Vide para 116, the
dissenting opinion has held that the Regulation and guidelines given by the
Medical Council oflndia are persuasive and do not have any binding force,
which are to be kept in view only broadly and that it is pennissible for the C
State authorities to short-list the eligible and qualified MBBS doctors for
being considered for admissions to postgraduate medical courses in the
institutions of the State, and for the purpose of such short-lising full
pleasure is available to the State authorities to exercise legislative or
executive power. With respect to the learned Judges constituting the Full D
Bench of the High Court, we have to say that they could not have relied
on the dissenting opinion of one learned judge, overlooking the majority
opinion which is the law laid down by the Constitution Bench and has the
binding force.

      The issue arising for decision before the Full Bench ofRajasthan High E
Court, arose for decisions in a very similar background in The State of
Madhya Pradesh & Ors. v. Gopal D. Tirthani & Ors., JT (2003) 6 SC 204.
Dealing with the question of why a common entrance test is necessary
and why an exception cannot be carved out in favour of in-service
candidates by lowering the standards below the ones pennitted by the F
Medical Council of India, this Court, following Dr. Preeti Srivastava 's
case, opined as under :

        "A pass mark is not a guarantee of excellence. There is a great
        deal of difference between a person who qualifies with the G
        minimum marks and a person who qualifies with high Marks. If
        excellence is to be promoted at the postgraduate level, the
        candidates qualifying should b~ able to secure goods marks while
        qualifying. Attaining minimum qualifying marks has direct relation
        with the standards of education. Prescription of qualifying marks
        is for assessment ..of the calibre of students chosen for admission. H
    842                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A           If the students are of a high calibre, training programmes can be
            suitably moulded so that they can receive the maximum benefit
            out of a high level of teaching. If the calibre of the students is poor
            or th~y are unable to follow the instructions being imparted, the
            standard of teaching necessarily has to be lowered to make them
B           understand the course which they have undertaken; and it may not
            be possible to reach the levels of education and training which can
            be attained with a bright group. The assemblage of students in a
            particular class should be within a reasonable range of variable
            calibre and intelligence, else the students will not be able to move
c           along with each other as a common class. Hence the need for a
            common entrance test and minimum qualifying marks as
            detennined by experts in the field of medical education."

    It was held that the selection of students who had secured marks less than
    the minimum marks prescribed by the Medical Council oflndia' s Regulation
D on account ofreduction in the minimum marks in the entrance examination
    made by the State Government, was liable to be struck down and ignored.
    If the State has a case for making a departure from the standards laid down
    by the Medical Council of India or for carving out of exception in favour
    of any identifiable class of persons, then it is for the State to represent to
E   the Central Government and/or the Medical Council of India and make out
    a case of Justification before the Medical Council of India. "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
    P.G. For taking up such examination, they must either keep updating
F   themselves regularly or concentrate on studies preparatory to entrance
    examinations but without sacrificing or compromising with their obligations
    to the people whom they are meant to serve on account of being in State
    services."

G       Out of the several conclusions summed up by the Court the one
  relevant for the purpose of the present case is - "There can be only one
  common entrance test for detennining eligibility for post graduation or in-
  serivce candidates and those not in service. The requirement of minimum
  qualifying marks cannot be lowered or relaxed contrary to the Medical
H Council of India regulations framed in this behalf'.
         HARISH VERMA v. AJAY SRIVASTAVA [LAHOTI, J.]                  843

      The court has observed that subject to securing the minimum A
qualifying marks if the in-service candidates formulate a class by themselves
for whom a separate channel of entry has been carved out then within the
group there may be scope for assigning wieghtage for rural service
rendered for the purpose of determining order of merit inter se, but such
weightage cannot be utilized for the purpose of relaxing the condition as B
to minimum qualifying marks as prescribed by the Medical Council of
India.

      The decision of the Full Bench of the High Court, having been
rendered in ignorance of the binding law laid down by the majority opinion
in the Constitution Bench decision of this Court in Dr. Preeti Srivastava C
and Anr., (supra) and also being inconsistent with the decision of this Court
in the case of Gopal D. Tirthani & Ors. (supra), is liable to be set aside.
The appeal is allowed. The impugned judgment of the Full Bench of the
High Court of Rajasthan is set aside and the judgment given by the learned
single Judge is restored.                                                     D
      As a consequence, the admissions given to such of the in-service
candidates who have secured marks less than the minimum prescribed by
Regulation 9 framed by the Medical Council of India are struck down and
set aside. The counselling shall have to be done afresh to the extent E
necessary. We are conscious of the fact that there would be some delay
in commencement of post-graduation studies and to some extent the 2002
and 2003 batches would overlap. However, that is a situation which cannot
be avoided. It is an inevitable consequence for which the successful
candidates for the year 2002 and 2003, i.e. those who will be held entitled
for admission in post-graduation courses of studies consequent upon this F
judgment, cannot be made to suffer for no fault of theirs. It will be for the
State of Rajasthan, if necessary then in consultation with the Medical
Council of India, to sort out the difficulties and to run the regular course
of the studies.
                                                                             G
     No order as to the costs.

v.s.s.                                                    Appeal allowed.