Chowdhury Navin Hemabhai & Ors vs State Of Gujarat & Ors

Chowdhury Navin Hemabhai & Ors. ...... Appellants

Versus

The State of Gujarat & Ors. ...... Respondents

JUDGMENT

A. K. PATNAIK, J.

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.

2 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

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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

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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

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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

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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

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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

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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

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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. 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

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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:-

(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

1

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 4."

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

1

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:

"5 . 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.

12. Minimum qualifying standard for

admission: (1) No student shall be

admitted in the professional medical

education course unless he/she fulfills the

1

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

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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)

1. 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

2. 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."

1 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

1

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

1

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 [(1988) 4 SCC

387], B.N. Nagarajan v. State of Mysore [(1966) 3

SCR 682], Special Reference No. 1 of 1964 [(1965)

1

1 SCR 413, 499] and Harbans Singh v. State of

U.P. [(1982) 2 SCC 101]. "

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

1

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.