Ms. Karuna vs Government Medical College & Hospital

LPA No. 2142 of 2012 -1-

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

LPA No. 2142 of 2012

Date of Decision: 19.3.2013

Ms. Karuna

....Appellant.

Versus

Government Medical College & Hospital, Chandigarh and others

...Respondents.

CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. HON'BLE MR. JUSTICE G.S. SANDHAWALIA.

PRESENT: Mr. Aman Arora, Advocate for the appellant.

Mr. Vishal Sodhi, Advocate for respondent No.1.

Mr. Deepak Sibal, Advocate for respondent No.3.

AJAY KUMAR MITTAL, J.

1. This order shall dispose of a bunch of three appeals bearing

LPA Nos. 2142, 2147 and 2165 of 2012 as according to the learned

counsel for the parties, similar issues are involved therein. For brevity,

the facts are being extracted from CWP No. 2142 of 2012.

2. In this appeal, the appellant has challenged the order dated

11.12.2012 passed by the learned Single Judge of this Court whereby

CWP No. 7928 of 2012 filed by her was dismissed.

3. Briefly stated, the relevant facts necessary for adjudication of

the present appeal as narrated therein are that the appellant in the month LPA No. 2142 of 2012 -2-

of April, 2011 applied for competitive examination, namely, Common

Entrance Test (CET) of 2011 for admission in MBBS Course under

Scheduled Caste Category. The appellant passed the said CET by

securing 39.16% marks and was selected in the merit list prepared by the

Punjab University. Thereafter, the appellant obtained 2nd prospectus from

respondent No.1 for admission to the MBBS Course. Respondent No.1

prepared 2nd merit list for admission to the MBBS Course to various

candidates. In the merit list for SC Category, the appellant was at Serial

No.7 and overall she was at Serial No. 99. On the basis of the 2nd merit

list, respondent No.1 granted admission to the appellant to the course of

MBBS by accepting fee vide receipt dated 13.7.2011 (Annexure P-4).

Thereafter, the appellant started attending her classes w.e.f. 18.7.2011

and has been continuing till 25.4.2012. After a period of ten months of

the attending of the classes by the appellant, respondent No.1 vide order

dated 25.4.2012 (Annexure P-6) cancelled the admission in the MBBS

Course on the ground that she had not secured minimum percentage of

marks i.e. 40% in CET. The said order was passed on the basis of order

dated 18.4.2012 (Annexure P-5) passed by respondent No.3. Feeling

aggrieved, the appellant approached this Court by way of CWP No. 7928

of 2012.

4. The said writ petition was contested by the respondents by

filing separate written statements. Respondent No.1 in its written

statement pleaded that it can only admit the students as per the guidelines

laid down by the Medical Council of India (MCI) and had no power to

overlook or ignore the guidelines so issued by the MCI. It further LPA No. 2142 of 2012 -3-

pleaded that order cancelling the admission of the appellant was pursuant

to the directions issued by the MCI. Respondent No.3-MCI in its reply

pleaded that the appellant appeared in the CET Examination under the

category of Scheduled Caste and had scored 39.16% marks in Physics,

Chemistry and Biology whereas as per the MCI Regulations, the

minimum required percentage of marks in CET in the said three subjects

is 40% for the students belonging to SC Category. It was further pleaded

that once the admissions for academic session 2011-12 were over, the

MCI issued circular dated 29.9.2011 to all the Medical Colleges and

Institutions to submit information regarding the admissions made by them

in the MBBS Course in order to verify that all the admissions have been

made on merit while complying with the statutory provisions.

Respondent No.1 accordingly sent its communication dated 25.10.2011

to the MCI who vide communication dated 4.1.2012 sought clarification

on certain issues including the admission of the appellant despite having

scored lesser marks than the minimum prescribed percentage as per the

Regulations on Graduate Medical Education, 1997. Thereafter, the MCI

obtained legal opinion and the matter was placed before the Board of

Governors. The Board of Governors decided that the admission of the

appellant was contrary to Regulation 5(5)(ii) of the Graduate Medical

Education Regulations and ordered that the appellant be discharged from

the course. The said order was communicated to respondent No. 1 on

18.4.2012. Respondent No.1 accordingly discharged the appellant from

the course of MBBS on 25.4.2012.

5. Learned Single Judge vide order dated 11.12.2012 dismissed LPA No. 2142 of 2012 -4-

the writ petition. Hence, the present Letters Patent Appeal.

6. Shri Aman Arora, learned counsel for the appellant

submitted that on the basis of the prospectus (Annexure P-1) issued by

Panjab University, the appellant was eligible as she fulfilled the

following eligibility condition and the merit criteria enumerated therein:-

"The eligibility criteria for admission to MBBS course

for U.T. Pool, is as follows:-

The test shall be open to all candidates who-

a) Attain the age of 17 years on or before 31st

December 2011

b) Have passed 10+2 (12th class) examinations

from Schools/Colleges recognized by the

Chandigarh Administration and situated in the

UT of Chandigarh as regular students of the said

Schools/Colleges. He/she should have passed in

the subject of Physics, Chemistry, Biology and

English individually, and must also have

obtained a minimum of 50% marks in the

aggregate of Physics, Chemistry and Biology at

10+2 level in the first attempt. Admission will

be based on Merit in CET. However, in the case

of members of the Scheduled Castes, relaxation

in marks not exceeding 10% shall be allowed,

Or

c) Are due to appear in +2 (12th class) examination LPA No. 2142 of 2012 -5-

in March, 2011, but whose result has not been

declared, the admission of such candidates to the

test shall be provisional. It shall stand

cancelled if they fail to pass qualifying

examination securing the prescribed percentage

of marks. Such candidates will not have any

claim, whatsoever, with regard to their

admission to the said course. Other eligibility

conditions remain the same as in (b) above.

MERIT LISTS

(a) The University will publish CET merit lists of

the candidates for the following combinations of

subjects:

1. Legal and General Awareness

2. Tourism and Hotel Management

3. Physics, Chemistry and Biology, (Medical

Merit)

4. Physics, Chemistry and Mathematics

(PCM Merit)

5. Physics, Chemistry and Biotechnology

6. Physics, Chemistry and Computer

Sciences

7. Mathematics only.

(b) A candidate shall be included in a particular

merit list on the basis of attainment of a LPA No. 2142 of 2012 -6-

minimum of 15% (cut off) aggregate of

maximum marks in the test taken as a whole.

Only in the case of candidates belonging to

Scheduled Castes/Scheduled Tribes , this

requirement will be a minimum attainment of

10% (cut off) aggregate of maximum marks in

CET test, taken as a whole.

(c) Candidates scoring equal marks will be

bracketed together. Their inter se merit will be

determined at the time of interview/counselling

by the concerned authority, as explained in the

admission procedure.

(d) Admissions to various courses shall be made on

the basis of merit lists prepared by the Panjab

University."

7. According to the learned counsel, the minimum percentage

of marks in the CET as given in the prospectus in case of general

category was 15% whereas in the case of candidates belonging to

Scheduled Castes/Scheduled Tribes, it was 10%. Relying upon the

judgment of the Hon'ble Apex Court in Shri Krishan v. The

Kurukshetra University, Kurukshetra (1976) 1 SCC 311 it was

contended that prospectus has a force of law and admission given on that

basis could not have been cancelled later on. Doctrine of Estoppel was

invoked to contend that MCI ought to have been vigilant and there was

no fault on the part of the students. The appellants were fully eligible as LPA No. 2142 of 2012 -7-

per eligibility criteria prescribed in the prospectus as well as MCI

guidelines and the CET was only for purposes of selection.

8. Reference was made to Regulations 4 and 5 of MCI

Regulations to contend that there existed difference between Regulation 4

and 5(2) thereof. Reliance was placed on the judgment reported in Rajan

Purohit and others v. Rajasthan University of Health, (2012) 10 SCC

770.

9. Equity was claimed on the plea that one year course has

already been completed by relying upon Monika Ranka and others v.

Medical Council of India and others, (2010) 10 SCC 233, Deepa

Thomas and others v. Medical Council of India and others (2012) 3

SCC 430 and Rajendra Prasad Mathur v. Karnataka University and

another AIR 1986 SC 1448. Further, it was urged that observations in

Dayanand Medical College was only obiter. Attention of the Court was

also drawn towards the condition where NRI students were exempted

from taking CET examination.

10. Mr. Harsh Aggarwal and Mr. B.B. Bagga, learned counsel

for the appellants in other appeals also sought to draw support with

reference to Regulations 4 and 5 of MCI Regulations. Support was also

gathered from the following judgments:-

(a) Archana v. University of Mysore ILR 1990 KAR

522;

(b) B.C. Chaturvedi v. Union of India and others 1995

(5) SLR 778.

11. On the other hand, controverting the aforesaid submissions, LPA No. 2142 of 2012 -8-

Mr. Deepak Sibal submitted that Ms. Karuna and Vikram Singh had

obtained 39.16% and 38.61%, respectively in the CET examination as

against the minimum requirement of 40% whereas Ms. Sonia Sharma got

24.67% in CET examination as against 45% required for inclusion in the

merit list for MBBS Course.

12. Learned counsel contended that in case the admission to the

appellants is allowed, the same would be in contravention of law which

is not permissible. Learned counsel for the respondents urged that the

minimum standards fixed by the MCI were required to be followed and

placed reliance upon the following observations in State of Punjab v.

Dayanand Medical College and Hospital and others (2001) 8 SCC

664:-

"17. It is clear that in respect of subjects other than

Anatomy, Physiology, Biochemistry, Pharmacology,

Pathology, Microbiology, Forensic Medicine and

Social and Preventive Medicine at least 40% of the

marks will have to be obtained in order to be eligible

for admission and in respect of other subjects there is

no such condition at all. In the counter affidavit filed

in the High Court, it is stated that the percentage of

marks has been reduced below 40% for the basic

subjects like Anatomy, Physiology and Pharmacology

because the candidates of higher merit are not opting

for these subjects and as such the postgraduate seats in

Departments of Anatomy, Physiology and LPA No. 2142 of 2012 -9-

Pharmacology keep lying vacant and thus leading to

an acute shortage of teachers in these Departments.

Further, the condition of 50% marks in the entrance

test was reduced to 40% because 80% of the seats

reserved for PCMS doctors remained unfilled because

most of them could not secure 50% marks in PGET

due to the fact that they do not get academic support in

rural areas. It is submitted that the postgraduate

entrance examination is held for those who have

already passed in MBBS examination by securing at

least 50% marks and, therefore, the candidates who

had not secured 50% in the postgraduate entrance

examination cannot be declared to be filled in MBBS.

The lowering of the marks to less than 50% has the

twin objective of safeguarding the interests of weaker

sections of the Scheduled Castes and Backward

classes and to meet the constitutional obligation. We

are afraid, the approach of the State of Punjab in this

regard results in stultifying the logic. What is

contended is that suitable candidates are to be selected

from amongst the eligible candidates and in that regard

an entrance test is being held. When such an entrance

test is held, a prescription has been made by the

Medical Council of India fixing a standard in terms of

Entry 66, List I of the Seventh Schedule to the LPA No. 2142 of 2012 -10-

Constitution and which cannot be diluted at all as has

been held in a series of decisions including Dr. Preeti

Srivastavas case, Dr.Narayan Sharma vs. Dr. Pankaj

Kumar Lehkar and Medical Council of India vs. State

of Karnataka. Therefore, it is not open to the

University or the Government to dilute that standard

by fixing marks lower than what is set out by Medical

Council of India. If they had any difficulty they ought

to have approached the Medical Council of India for

fixing of appropriate standards in that regard. The

State Government could not unilaterally frame a

scheme reducing the standard in violation of the terms

of the Regulations framed by the Medical Council of

India, which is repeatedly stated by this Court to be

repository of the power to prescribe standards in Post

Graduate studies subject, of course, to the control of

the Central Government as envisaged in the Act

constituting the Council.

18. What we have now to see is whether the action

taken by the appellants is consistent with the

prescription made by the Medical Council of India to

the extent of obtaining 50% marks in the entrance

examination and on that basis operate their rosters. If

they do so and if the candidates, who have secured

50% marks, would be admitted, no interference is LPA No. 2142 of 2012 -11-

called for in the matter. If, however, any of the

students has secured less than 50% marks that

admission alone will have to be cancelled and

appropriate directions issued to select as against it

another candidate belonging to the reserved category if

there is a reserved category candidate who has secured

such marks, and if no reserved category candidate is

available, he must then be selected from the general

category.

19. We, therefore, find that the prescription made by

the respondents reducing the minimum marks to 40%

in the entrance examination for considering the

eligibility of the candidates for admission to

postgraduate medical courses and in respect of the

basic subjects fixing no minimum standard is plainly

in contravention of the Regulations framed by the

Medical Council of India and that part of the

notification will have to be ignored. If that is done and

if the Regulations framed by the Medical Council of

India are applied in toto, appropriate working will

have to be made by the appellants as indicated, supra

and the same will have to be given effect to."

13. On the strength of judgments reported in A.P. Christians

Medical Educational Society v. Government of Andhra Pradesh and

another (1986) 2 SCC 667, CBSE and another v. P. Sunil Kumar and LPA No. 2142 of 2012 -12-

others (1998) 5 SCC 377 and Shri Morvi Sarvajanik Kelavni Mandal

Sanchalit Mskm B.Ed. College v. National Council for Teachers'

Education and others (2012) 2 SCC 16, the ground of equity as claimed

by the appellant was stoutly opposed. Support was also drawn from para

5 of the judgment reported as Ahmedabad Municipal Corporation v.

Virendra Kumar Jayanti Bhai Patel 1997 (4) RSJ 19, which reads

thus:-

"5. The second reasoning give by the tribunal in

issuing direction to the Corporation for absorbing the

respondent in its permanent service which was not

touched upon by the High Court is that the case of the

respondent requires sympathetic consideration, as

presumably the respondent has been visiting the

Corporation's Clinic since early seventies, remains to

be considered. As noticed earlier, the recruitment of

the doctors in the clinic run by the Corporation is

made in accordance with the statutory rules and by no

other method. Under the rules the vacancies are

advertised for inviting applications from eligible

candidates. After the applications are received the

Selection Committee is constituted to select the

candidates for appointment in the Corporation's clinic.

Only after the candidates are selected they are taken in

the service. It is also noticed earlier that respondent

appeared before the Selection Committee but was not LPA No. 2142 of 2012 -13-

selected. Under such circumstances, there is no room

for sympathy or equity in the matter of such

appointment specially where the recruitment in service

is governed by the statutory rules. If the reasoning

given by the tribunal is accepted, the statutory

recruitment rules would become nugatory or otiose

and the department can favour any person or appoint

any person without following procedure provided in

the recruitment rules which would lead to nepotism

and arbitrariness. Once the consideration of equity in

the face of statutory rules is accepted then eligible and

qualified persons would be sufferers as they would not

get any cache to be considered for appointment. The

result would be that persons lesser in merit would get

preference in the matter of appointment merely on the

ground of equity and compassion. It is therefore not

safe to bend the arms of law only for adjusting equity.

We, therefore, find that the reasoning given by the

tribunal that sympathy demands the absorption of the

respondent in the service of the Corporation suffers

from error of law."

14. After hearing learned counsel for the parties, the following

issues arise for consideration in these appeals:-

(a) Whether the MCI Regulations shall prevail and have

precedence over the prospectus issued by the LPA No. 2142 of 2012 -14-

University/College?

(b) Whether the requirement of eligibility criteria would

be sufficient for admission and non-fulfilment of the

condition of Common Entrance Test would still

entitle the appellants to retain their admission on the

basis of doctrine of promissory estoppel?

(c) Whether in the facts and circumstances of the case, the

appellants are entitled to the claim of equity in their

favour?

15. Taking up first and second issue together, as they overlap

each other, it would be apposite to refer to Regulations 4 and 5 of the

MCI Regulations. Regulation 4 of the MCI Regulations provides for

eligibility criteria for admission to the medical course whereas Regulation

5 deals with selection of students to medical colleges on the basis of

merit of the candidates. It read thus:-

"4. Admission to the Medical Course- Eligibility

Criteria: No Candidate shall be allowed to be

admitted to the Medical Curriculum of first Bachelor

of Medicine and Bachelor of surger (MBBS) Course

until:

(1) He/she shall complete the age of 17 years on or

before 31st December, of the year admission to the

MBBS course;

(2) He/she has passed qualifying examination as

under:-

LPA No. 2142 of 2012 -15-

(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 elective 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;

Note: Where the course content is not as prescribed for

10+2 education structure of the National Committee,

the candidates will have to undergo a period of one

year pre-professional training before admission to the

Medical Colleges;

or

(b) The intermediate examination in science of an

Indian University/Board or other recognized

examining body with Physics, Chemistry and Biology

which shall include a practical test in these subjects

and also English as a compulsory subject;

or

(c) The pre-professional/pre-medical examination

with Physics, Chemistry and Biology, after passing LPA No. 2142 of 2012 -16-

either the higher secondary school examination, or the

pre-university or an equivalent examination. The pre-

professional/pre-medical examination shall include a

practical test in Physics, Chemistry and Biology and

also English as a compulsory subject;

or

(d) The first year of the three years degree course of

a recognized university, with Physics, chemistry and

Biology including a practical test in three subjects

provided the examination is a "University

Examination" and candidate has passed 10+2 with

English at a level not less than a core course;

or

(e) B.Sc. examination of an Indian University,

provided that he/she has passed the B.Sc examination

with not less than two of the following subjects

Physics, Chemistry, Biology (Botany, Zoology) and

further that he/she has passed the earlier qualifying

examination with the following subjects - Physics,

Chemistry, Biology and English.

Or

(f) Any other examination which, in scope and

standard is found to be equivalent to the intermediate

science examination of an Indian University/Board,

taking Physics, Chemistry and Biology including LPA No. 2142 of 2012 -17-

practical test in each of these subjects and English.

Note:

The pre-medical course may be conducted either

at Medical College or a Science College.

Marks obtained in Mathematics are not to be

considered for admission to MBBS Course.

After the 10+2 course is introduced, the

integrated courses should be abolished.

5. Selection of Students: The selection of students to

medical college shall be based solely on merit of the

candidate and for determination of the 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

authority) a competitive entrance examination should

be held so as to achieve a uniform evaluation as there

may be variation of standards at qualifying LPA No. 2142 of 2012 -18-

examination conducted by different agencies;

(3) Where there are more than one college in a state

and only one university/board 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,

candidate for admission to MBBS course must have

passed in the subjects of Physics, Chemistry, Biology

& English individually and must have obtained a

minimum of 50% marks taken together in Physics,

Chemistry, and Biology at the qualifying examination

as mentioned in clause (2) of regulation 4. In 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 LPA No. 2142 of 2012 -19-

regulation, a candidate must have passed in the

subjects of Physics, Chemistry, Biology and English

individually and must have obtained a minimum of

50% marks taken together in Physics, Chemistry and

Biology at the qualifying examination as mentioned in

Clause (2) of Regulation 4 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 Caste,

Scheduled 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 that course until he fulfils

the eligibility criteria under regulation 4."

16. Regulation 4 of the MCI Regulation prescribes the eligibility

criteria for admission to the medical course. According to it no candidate LPA No. 2142 of 2012 -20-

shall be allowed to be admitted to the MBBS course unless; (a) he/she

has completed the age of 17 years on or before the 31st December of the

year of admission to the MBBS course, and (b) he/she has passed the

qualifying examination as stipulated therein.

17. Regulation 5 of the MCI Regulations relates to selection of

students to Medical Colleges on the basis of merit of the candidates.

Various criteria have been prescribed for determination of merit which

are required to be adopted uniformly throughout the country. Clauses (2)

and 5(ii) of Regulation 5, are relevant for the purpose of decision of these

appeals. Under clause (2) of Regulation 5, in the States where there are

more than one University/Board/examining body conducting the

qualifying examination, a competitive entrance examination should be

held so as to achieve a uniform evaluation as there may be variation of

standard at qualifying examination conducted by different agencies.

Clause (5)(ii) of Regulation 5, deals with cases where admission is to be

made on the basis of competitive entrance examination under clauses (2)

to (4) of Regulation 5 of the MCI Regulations. According to it, a

candidate is required to pass subjects of Physics, Chemistry, Biology and

English individually and must have obtained 50% marks taken together in

Physics, Chemistry and Biology in the qualifying examination as required

under Clause 4(2) of these regulations. Additionally, their names must

appear in the merit list prepared on the basis of competitive entrance test

wherein marks in Physics, Chemistry and Biology taken together in the

competitive examination should not be less than 50%. However,

relaxation of 10% has been provided in respect of candidates belonging LPA No. 2142 of 2012 -21-

to Scheduled Castes, Scheduled Tribes or other Backward Classes. In

other words, where a candidate belongs to Scheduled Castes, Scheduled

Tribes or Backward Classes, he or she would be required to obtain 40%

instead of 50% marks in the subjects of Physics, Chemistry and Biology

taken together in qualifying examination and also in competitive entrance

examination.

18. The Constitution Bench in Dr. Preeti Srivastava and

another v. State of M.P. and others (1999) 7 SCC 120 emphasizing the

requirement of prescribing standards in Institution for higher professional

education and dealing with admission for MBBS courses has laid down

that the Regulations of MCI laying down the standards of education for

postgraduate medical courses have to be complied with. It was observed

as under:-

"55. We do not agree with this interpretation put on

Section 20 of the Indian Medical Council Act, 1956.

Section 20(1) (set out earlier) is in three parts. The

first part provides that the Council may prescribe

standards of post-graduate medical education for the

guidance of universities. The second part of sub-

section(1) says that the Council may advise

universities in the matter of securing uniform

standards for post-graduate medical education

throughout. The last part of sub- section (1) enables

the Central Government to constitute from amongst

the members of the Council, a post-graduate medical LPA No. 2142 of 2012 -22-

education committee. The first part of sub-section(1)

empowers the Council to prescribe standards of post-

graduate medical education for the guidance of

universities. Therefore, the universities have to be

guided by the standards prescribed by the Medical

Council and must shape their programmes

accordingly. The scheme of the Indian Medical

Council Act, 1956 does not give an option to the

universities to follow or not to follow the standards

laid down by the Indian Medical Council. For

example, the medical qualifications granted by a

university or a medical institution have to be

recognised under the Indian Medical Council Act,

1956. Unless the qualifications are so recognised, the

students who qualify will not be able to practice.

Before granting such recognition, a power is given to

the Medical Council under Section 16 to ask for

information as to the courses of study and

examinations. The universities are bound to furnish the

information so required by the Council. The post-

graduate medical committee is also under Section 17,

entitled to appoint medical inspectors to inspect any

medical institution, college, hospital or other

institution where medical education is given or to

attend any examination held by any university or LPA No. 2142 of 2012 -23-

medical institution before recommending the medical

qualification granted by that university or medical

institution. Under Section 19, if a report of the

Committee is unsatisfactory the Medical Council may

withdraw recognition granted to a medical

qualification of any medical institution or university

concerned in the manner provided in Section 19.

Section 19A enables the Council to prescribe

minimum standards of medical education required for

granting recognised medical qualifications other than

post-graduate medical qualifications by the

universities or medical institutions, while Section 20

gives a power to the Council to prescribe minimum

standards of post-graduate medical education. The

universities must necessarily be guided by the

standards prescribed under Section 20(1) if their

degrees or diplomas are to be recognised under the

Medical Council of India Act. We, therefore, disagree

with and overrule the finding given in Ajay Kumar v.

State of Bihar, to the effect that the standards of post-

graduate medical education prescribed by the Medical

Council of India are merely directory and the

universities are not bound to comply with the

standards so prescribed."

19. Similar view was expressed in State of Madhya Pradesh LPA No. 2142 of 2012 -24-

and others v. Gopal D. Tirthani and others (2003) 7 SCC 83 and

Harish Verma v. Ajay Srivastava and another (2003) 8 SCC 69.

20. MCI governs the professional institutions relating to

medicine. The MCI Regulations are thus required to be mandatorily

followed for seeking admission to MBBS course. In terms of the statute

and the regulations passed thereunder, the professional institutions are

required to maintain minimum standards. No deviation or departures can

be made in achieving those standards. In medical profession to acquire

excellence, a very high calibre is required to be satisfied by the

meritorious students. In such a situation, merit alone should be the basis

of selection of the candidates. The professional education like medicine

would not be able to absorb any candidate who does not obtain the

minimum qualifying marks in terms of Regulation 4 of the MCI

Regulations and at the same time, to maintain quality in the profession,

the Common Entrance Test is also required to be cleared as mandated

under Regulation 5 of the MCI Regulations. The prospectus issued by

any University or College at variance with the MCI Regulation lowering

the minimum required percentage either for qualifying examination or

Common Entrance Test would not have any statutory force. Thus, being

different on factual matrix involved therein, the appellants cannot derive

any benefit from the judgment in Shri Krishan's case (supra).

21. Equally, the claim of the appellants on the basis of

promissory estoppel would not entitle them to derive any advantage by

invoking the aforesaid principle primarily as not obtaining minimum

percentage of marks in CET as prescribed in MCI Regulations had LPA No. 2142 of 2012 -25-

rendered them ineligible for inclusion of their names in the merit list for

consideration for admission to MBBS course. By this method, the

minimum requirement as prescribed under any regulation, rule or statute

cannot be bypassed and no benefit can be urged on behalf of the

appellants. Issues No.(a) and (b), thus stands answered accordingly.

22. Adverting to third issue, it may be noticed that the standard

of excellence has to be preserved and maintained. At higher level, more

particularly in technical and professional institutions/courses, it would be

the requirement of general consensus that the best is preferred avoiding

mediocrity and annihilating quality. Particularly in professional

institutions, passing of the CET and prescribing of minimum marks is a

necessity to maintain quality, excellence and academic standards in the

profession. This can be achieved by prescribing the minimum standards

and qualifications that must be possessed by candidates. In order to

acquire excellence in medical profession in particular, a very high calibre

is demanded which criterion can be fulfiled by the meritorious students

alone. In order to produce good doctors, the merit alone should be the

basis of selection for the candidates. The Apex Court in TMA Pai

Foundation v. State of Karnataka (2002) 8 SCC 481 also in no

uncertain terms said that merit would be the first criterion for imparting

professional education. In other words, it has been clarified that merit

and excellence assume special significance in the context of professional

studies. In P.A. Inamdar v. State of Maharashtra and others (2005) 6

SCC 537, it has further been noted that "though merit and excellence are

not anathema to non-professional education, yet at that level and due to LPA No. 2142 of 2012 -26-

the nature of education which is more general, the need for merit and

excellence therein is not of the degree as is called for in the context of

professional education." It has further been recorded that professional

education should be made accessible on the criterion of merit and on non-

exploitative terms to all eligible students on a uniform basis.

23. A Three Judges Bench of the Hon'ble Apex Court in A.P.

Christians Medical Educational Society v. Govt. of A.P. (1986) 2 SCC

667 observed as under:-

"We cannot by our fiat direct the University to disobey

the statute to which it owes its existence and the

regulations made by the University itself. We cannot

imagine anything more destructive of the rule of law

than a direction by the court to disobey the laws."

24. Relying upon this decision, in CBSE and another v. P.

Sunil Kumar and others (1998) 5 SCC 377, the issue relating to

proprietary to permit students to appear on sympathetic grounds was

deprecated by the Hon'ble Apex Court in the following words:-

"3. There is no dispute that the institution in which

these students had pursued their studies have not yet

received any affiliation from the Central Board of

Secondary Education, who is the appellant in these

appeals. Under the bye-laws of the Board only regular

students of affiliated schools with the Board are

entitled to appear in the Secondary School

Examination and the Senior Secondary School LPA No. 2142 of 2012 -27-

Examination conducted by the Board. Since the

institutions in which the respondents - students have

prosecuted their studies are admittedly not affiliated to

the Board but the students have been allowed to

appear at the examination pursuance to the interim

direction of the court, which is in contravention of the

Rules and Regulations of the Board, the question that

arises for consideration is : whether the High Court

was justified in issuing these impugned directions ?

This question no longer remains res integra. This

Court in several cases deprecated the practice of

allowing students to appear provisionally in the

examinations of the Board or the University and then

ultimately regularising the same by taking a

sympathetic view of the matter. In the case of A.P.

Christians Medical Educational Society v.

Government of Andhra Pradesh and another, this

Court held that the court will not be justified in issuing

direction to the University to protect the interest of the

students who had been admitted to the medical college

in clear transgression of the provisions of the

University Act and the regulations of the University. It

was also observed that the court cannot by its fiat

direct the University to disobey the statute to which it

owes its existence and the regulations made by the LPA No. 2142 of 2012 -28-

University itself as that would be destructive of the

rule of law. In the case of the State of T.N.v. St.

Joseph Teachers' Training Institute, this Court held

that the direction of admitting students of unauthorised

educational institutions and permitting them to appear

at the examination has been looked with disfavour and

the students of unrecognised institutions who are not

legally entitled to appear at the examination conducted

by the Education Department of the Government

cannot be allowed to sit at the examination and the

High Court committed error in granting permission to

such students to appear at the public examination. All

these cases were again considered by a three Judge

Bench of this Court in the case of the State of

Maharashtra v. Vikas Sahebrao Roundable and others,

and it was held that the students of unrecognised and

unauthorised educational institutions could not have

been permitted by the High Court on a writ petition

being filed to appear in examination and to be

accommodated in recognised institutions. The Court

ultimately struck down the direction issued by the

High Court. In yet another case, Guru Nanak Dev

University v. Parminder Kr. Bansal and others, another

three Judge Bench of this Court interfered with the

interim order passed by the High Court to allow LPA No. 2142 of 2012 -29-

students to undergo internship course even without

passing the MBBS examination. The Court observed:

(SCC p. 403 para 7)

"We are afraid that this kind of administration of

interlocutory remedies, more guided by

sympathy quite often wholly misplaced, does no

service to anyone. From the series of orders that

keep coming before us in academic matters, we

find that loose, ill-conceived sympathy

masquerades as interlocutory justice exposing

judicial discretion to the criticism of

degenerating into private benevolence. This is

subversive of academic discipline, or whatever

is left of it, leading to serious impasse in

academic life. Admissions cannot be ordered

without regard to the eligibility of the

candidates. Decisions on matters relevant to be

taken into account at the interlocutory stage

cannot be deferred or decided later when serious

complications might ensue from the interim

order itself. In the present case, the High Court

was apparently moved by sympathy for the

candidates then by an accurate assessment of

even the prima facie legal position. Such orders

cannot be allowed to stand. The courts should LPA No. 2142 of 2012 -30-

not embarrass academic authorities by

themselves taking over their functions."

25. Similar view was expressed by the Hon'ble Apex Court in

Regional Officer, CBSE v. Ku. Sheena Peeth Ambaran and others

(2003) 7 SCC 719.

26. A three Judges Bench in Guru Nanak Dev University v.

Parminder Kr. Bansal (1993) 4 SCC 401 relating to academic matters

noted as follows:-

"We are afraid that this kind of administration of

interlocutory remedies, more guided by sympathy

quite often wholly misplaced, does no service to

anyone. From the series of orders that keep coming

before us in academic matters, we find that loose, ill-

conceived sympathy masquerades as interlocutory

justice exposing judicial discretion to the criticism of

degenerating into private benevolence. This is

subversive of academic discipline, or whatever is left

of it, leading to serious impasse in academic life.

Admissions cannot be ordered without regard to the

eligibility of the candidates. Decisions on matters

relevant to be taken into account at the interlocutory

stage cannot be deferred or decided later when serious

complications might ensue from the interim order

itself. In the present case, the High Court was

apparently moved by sympathy for the candidates than LPA No. 2142 of 2012 -31-

by an accurate assessment of even the prima facie legal

position. Such orders cannot be allowed to stand. The

courts should not embarrass academic authorities by

themselves taking over their functions."

27. In the case of Sunil Oraon (minor) through Guardian and

others v. CBSE and others (2006) 13 SCC 673, it was recorded as

under:-

"14. Now, we would refer to the law settled by this

Court in various Judgments to the effect that interim

orders of the nature passed in the present case are

detrimental to education and its efficient management.

As a matter of course, such interim orders should not

be passed, as they are aberrations and it is subversive

of academic discipline.

15. In Regional Officer, CBSE v. Sheena

Pethambaran, this Court has observed: (SCC p. 724,

para 6)

"6. This Court has on several occasions

earlier deprecated the practice of permitting the

students to pursue their studies and to appear in

the examination under the interim orders passed

in the petitions. In most of such cases it is

ultimately pleaded that since the course was

over or the result had been declared, the matter

deserves to be considered sympathetically. It LPA No. 2142 of 2012 -32-

results in very awkward and difficult situations.

Rules stare straight into the face of the plea of

sympathy and concessions, against the legal

provisions."

16. In C.B.S.E. and another v. P. Sunil Kumar, the

institutions whose students were permitted to

undertake the examination of the Central Board of

Secondary Education were not entitled to appear in the

examination. They were, however, allowed to appear

in the examination under the interim orders granted by

the High Court. In that context the Supreme Court

observed: (SCC p. 381, para 4)

"4.... But to permit students of an unaffiliated

institution to appear at the examination

conducted by the Board under orders of the

Court and then to compel the Board to issue

certificates in favour of those who have

undertaken examination would tantamount to

subversion of law and this Court will not be

justified to sustain the orders issued by the High

Court on misplaced sympathy in favour of the

students."

17. In Guru Nanak Dev University v. Parminder Kr.

Bansal, the Supreme Court observed that such interim

order is subversive of academic discipline. The LPA No. 2142 of 2012 -33-

relevant observations are as under: (SCC p. 403, para

7)

"1....We are afraid that this kind of

administration of interlocutory remedies, more

guided by sympathy quite often wholly

misplaced, does no service to anyone. From the

series of orders that keep coming before us in

academic matters, we find that loose, ill-

conceived sympathy masquerades as

interlocutory justice exposing judicial discretion

to the criticism of degenerating into private

benevolence. This is subversive of academic

discipline, or whatever is left of it, leading to

serious impasse in academic life. Admissions

cannot be ordered without regard to the

eligibility of the candidates ... The courts should

not embarrass academic authorities by

themselves taking over their functions."

18. Yet in another case i.e. in the case of A.R

Christians Medical Educational Society vs. Govt. of

A.P. this Court held that: (SCC p. 678, para 10)

"We cannot by our fiat direct the University to

disobey the statute to which it owes its existence

and the regulations made by the University

itself. We cannot imagine anything more LPA No. 2142 of 2012 -34-

destructive of the rule of law than a direction by

the court to disobey the laws."

19. In State of Tamil Nadu v. St. Joseph Teacher's

Training Institute this Court observed that the

direction of admitting the students of unauthorized

educational institutions and permitting them to appear

at the examination has been looked on with disfavour

and the students of unrecognised institutions who are

not legally entitled to appear at the examination

conducted by the Educational Department of the

Government cannot be allowed to sit at the

examination and the High Court committed an error in

granting permission to such students to appear at the

public examination.

20. In Central Board of Secondary Education v.

Nikhil Gulati, this Court deprecated the practice

followed by the High Court to issue direction and also

observed that such aberrations should not be treated as

a precedent in future.

21. In Krishna Priya Ganguly v. University of

Lucknow, the Supreme Court observed: (SCC p. 310,

para 3)

"3..... whenever a writ petition is filed

provisional admission should not be given as a

matter of course on the petition being admitted LPA No. 2142 of 2012 -35-

unless the court is fully satisfied that the

petitioner has a cast-iron case which is bound to

succeed or the error is so gross or apparent that

no other conclusion is possible."

22. In State of Maharashtra v. Vikas Sahebrao

Roundale, it was held that the students of

unrecognized and unauthorized educational

institutions could not have been permitted by the High

Court on a writ Petition being filed to appear in the

examination and to be accommodated in recognized

institutions. This Court observed: (SCC p. 439, para

12)

"12.... Slackening the standard and judicial fiat

to control the mode of education and examining

system are detrimental to the efficient

management of the education."

28. In all fairness, adverting to the judgments relied upon by

learned counsel for the appellants, it may be noticed that in Monika

Ranka's case (supra), the Hon'ble Apex Court while maintaining the

judgment of the High Court that the admission of the students was illegal

and irregular and their studies were directed to be terminated, in the facts

and circumstances therein, held that as a special case, they were allowed

to continue with their studies. Thus, it was in exercise of power vested

under Article 142 of the Constitution that the appellants therein were

allowed to continue studies.

LPA No. 2142 of 2012 -36-

29. In Deepa Thomas and others v. Medical Council of India

and others, while holding that irregular admissions were made by the

Colleges in violation of MCI regulations, exercising its power under

Article 142 of the Constitution of India, the Hon'ble Apex Court granted

equitable relief as the students therein had continued studies for 4½ years

and the prospectus of medical colleges were also approved by Statutory

State Admission Supervisory Committee.

30. In Rajan Purohit and others v. Rajasthan University of

Health Science and others, the Hon'ble Supreme Court held that the 117

students who had been admitted to the MBBS course in the College as

there was violation of Clause (2) of Regulation 5 of the MCI Regulations,

however, in exercise of power under Article 142 of the Constitution of

India, their admission should not be disturbed.

31. In Rajendra Prasad Mathur's case (supra), the students

therein were admitted in some colleges and had been pursuing course for

four years under orders of the High Court and the Supreme Court. In the

peculiar facts of the case, the Supreme Court allowed them to continue

their studies.

32. Hon'ble Supreme Court in B.C.Chaturvedi's case (supra)

opined that though there was not any provision parallel to Article 142 of

the Constitution relating to the High Courts, that cannot be taken as a

ground to think that they have not to do complete justice and wherever

required the relief should be moulded to do complete justice between the

parties though it may not be as wide which the Supreme Court has under

Article 142 of the Constitution.

LPA No. 2142 of 2012 -37-

33. Karnataka High Court in Archana's case (supra) noticed that

just as the Supreme Court, the High Court also in exercise of its

jurisdiction under Article 226 of the Constitution can do equity and the

decision of the Supreme Court in matters of equity if applies to the facts

of a particular case, becomes a binding precedent.

34. The cases relied upon by learned counsel for the appellants

being exceptional on their own facts as noticed hereinbefore would not

entitle them to pursue the medical studies as the requirement under

Regulation 5(5)(ii) of MCI Regulations does not stand fulfilled. Defining

the scope of Article 142 of the Constitution of India, the Hon'ble Apex

Court in A.B. Bhaskara Rao v. Inspector of Police, CBI,

Vishakapatnam (2011) 10 SCC 259 after referring to various

Constitution Bench judgments noticed as under:-

"Speaking for the Bench one of us - (Dr. Justice B.S.

Chauhan) referred to more than fifty decisions

including the Constitution Bench judgments. The

relevant paras, which are useful, may be quoted:

(Manish Goel case SCC pp. 398-401, paras 11-18)

"11. We are fully alive of the fact that this

Court has been exercising the power under

Article 142 of the Constitution for dissolution of

marriage where the Court finds that marriage is

totally unworkable, emotionally dead, beyond

salvage and has broken down irretrievably, even

if the facts of the case do not provide a ground LPA No. 2142 of 2012 -38-

in law on which the divorce could be granted.

Decree of divorce has been granted to put

quietus to all litigations between the parties and

to save them from further agony, as it is evident

from the judgments in Romesh Chander v.

Savitri, Kanchan Devi v. Promod Kumar Mittal,

Anita Sabharwal v. Anil Sabharwal, Ashok

Hurra v. Rupa Bipin Zaveri, Kiran v. Sharad

Dutt, Swati Verma v. Rajan Verma, Harpit

Singh Anand v. State of W.B., Jimmy Sudarshan

Purohit v. Sudarshan Sharad Purohit, Durga

Prasanna Tripathy v. Arundhati Tripathy,

Naveen Kohli v. Neelu Kohli, Sanghamitra

Ghosh v. Kajal Kumar Ghosh, Rishikesh

Sharma v. Saroj Sharma, Samar Ghosh v. Jaya

Ghosh and Satish Sitole v. Ganga. However,

these are the cases, where this Court came to

rescue the parties on the ground for divorce not

provided for by the legislature in the statute.

12. In Anjana Kishore v. Puneet

Kishore, this Court while allowing a transfer

petition directed the court concerned to decide

the case of divorce by mutual consent, ignoring

the statutory requirement of moving the motion

after expiry of the period of six months under LPA No. 2142 of 2012 -39- Section 13-B(2) of the Act. In Anil Kumar Jain,

this Court held that an order of waiving the

statutory requirements can be passed only by

this Court in exercise of its powers under Article

142 of the Constitution. The said power is not

vested with any other court.

13. However, we have also noticed

various judgments of this Court taking a

contrary view to the effect that in case the legal

ground for grant of divorce is missing,

exercising such power tantamounts to legislation

and thus transgression of the powers of the

legislature, which is not permissible in law (vide

Chetan Dass v. Kamla Devi and Vishnu Dutt

Sharma v. Manju Sharma.

14. Generally, no court has competence to

issue a direction contrary to law nor can the

court direct an authority to act in contravention

of the statutory provisions. The courts are meant

to enforce the rule of law and not to pass the

orders or directions which are contrary to what

has been injected by law. (Vide State of Punjab

v. Renuka Singla, State of U.P. v. Harish

Chandra, Union of India v. Kirloskar Pneumatic

Co. Ltd, University of Allahabad v. Dr. Anand LPA No. 2142 of 2012 -40-

Prakash Mishra and Karnataka SRTC v.

Ashrafulla Khan).

15. A Constitution Bench of this Court in

Prem Chand Garg v. Excise Commr. AIR 1963

SC 996 held as under: (AIR p. 1002, para 12)

'12. ... An order which this Court can

make in order to do complete justice

between the parties, must not only be

consistent with the fundamental rights

guaranteed by the Constitution, but it

cannot even be inconsistent with the

substantive provisions of the relevant

statutory laws.' The Constitution Benches of this Court in

Supreme Court Bar Assn. v. Union of India and

E.S.P. Rajaram v. Union of India held that under

Article 142 of the Constitution, this Court

cannot altogether ignore the substantive

provisions of a statute and pass orders

concerning an issue which can be settled only

through a mechanism prescribed in another

statute. It is not to be exercised in a case where

there is no basis in law which can form an

edifice for building up a superstructure.

16. Similar view has been reiterated in LPA No. 2142 of 2012 -41- A.R. Antulay v. R.S. Nayak, Bonkya v. State of

Maharashtra, Common Cause v. Union of India ,

M.S. Ahlawat v. State of Haryana, M.C. Mehta

v. Kamal Nath, State of Punjab v. Rajesh Syal ,

Govt. of W.B. v. Tarun K. Roy, Textile Labour

Assn. v. Official Liquidator, State of Karnataka

v. Ameerbi, Union of India v. Shardindu and

Bharat Sewa Sansthan v. U.P. Electronics

Corpn. Ltd.

17. In Teri Oat Estates (P) Ltd. v. UT,

Chandigarh this Court held as under: (SCC p.

144, para 36)

'36. ... sympathy or sentiment by itself

cannot be a ground for passing an order in

relation whereto the appellants miserably

fail to establish a legal right. ... despite an

extraordinary constitutional jurisdiction

contained in Article 142 of the

Constitution of India, this Court ordinarily

would not pass an order which would be

in contravention of a statutory provision.'

18. In Laxmidas Morarji v. Behrose Darab

Madan, while dealing with the provisions of

Article 142 of the Constitution, this Court has

held as under: (SCC p. 433, para 25) LPA No. 2142 of 2012 -42-

'25. ... The power under Article 142 of the

Constitution is a constitutional power and

hence, not restricted by statutory

enactments. Though the Supreme Court

would not pass any order under Article

142 of the Constitution which would

amount to supplanting substantive law

applicable or ignoring express statutory

provisions dealing with the subject, at the

same time these constitutional powers

cannot in any way, be controlled by any

statutory provisions. However, it is to be

made clear that this power cannot be used

to supplant the law applicable to the case.

This means that acting under Article 142,

the Supreme Court cannot pass an order

or grant relief which is totally inconsistent

or goes against the substantive or

statutory enactments pertaining to the

case. The power is to be used sparingly in

cases which cannot be effectively and

appropriately tackled by the existing

provisions of law or when the existing

provisions of law cannot bring about

complete justice between the parties."

LPA No. 2142 of 2012 -43-

35. Though the motion Bench hearing the appeal on 20.12.2012

had allowed the appellants to attend classes and appear in the

examination which was specifically with the condition that it shall not

create any right in law or equity in their favour, in the writ petition as

well similar interim order was passed. Thus, the appellants cannot claim

any benefit either in equity or in law to continue their studies. A mistake

or an error committed by the college or the University in publishing its

prospectus contrary to MCI regulations would not clothe the student with

any legal right for admission which would be capable of enforcement in

a Court of law. At the same time, it shall be open for the students to

claim suitable damages against the wrong doer in accordance with law.

Further, the MCI shall also look into the matter and take appropriate

corrective action against the Institute/University for the commission of

such an error which has affected the career of the appellants.

36. With the above observations, finding no merit in the appeals,

the same are dismissed.

(AJAY KUMAR MITTAL) JUDGE

March 19 , 2013 (G.S. SANDHAWALIA) gbs JUDGE LPA No. 2142 of 2012 -44-

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

LPA No. 2165 of 2012

Date of Decision: 19.3.2013

Vikran Singh

....Appellant.

Versus

Medical Council of India and others

...Respondents.

CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.

HON'BLE MR. JUSTICE G.S. SANDHAWALIA.

PRESENT: Mr. Harsh Aggarwal, Advocate for the appellant.

Mr. Deepak Sibal, Advocate for respondent No.1.

Mr. Vishal Sodhi, Advocate for respondents No.3 and 4.

AJAY KUMAR MITTAL, J.

For orders, see LPA No. 2142 of 2012 (Ms. Karuna v.

Government Medical College & Hospital, Chandigarh and others).

(AJAY KUMAR MITTAL) JUDGE

March 19 , 2013 (G.S. SANDHAWALIA) gbs JUDGE LPA No. 2142 of 2012 -45-

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

LPA No. 2147 of 2012

Date of Decision: 19.3.2013

Sonia Sharma

....Appellant.

Versus

Government Medical College & Hospital, Chandigarh and others

...Respondents.

CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.

HON'BLE MR. JUSTICE G.S. SANDHAWALIA.

PRESENT: Mr. B.B. Bagga, Advocate for the appellant.

Mr. Deepak Sibal, Advocate for respondent No.1.

Mr. Vishal Sodhi, Advocate for respondents No.3 and 4.

AJAY KUMAR MITTAL, J.

For orders, see LPA No. 2142 of 2012 (Ms. Karuna v.

Government Medical College & Hospital, Chandigarh and others).

(AJAY KUMAR MITTAL) JUDGE

March 19 , 2013 (G.S. SANDHAWALIA) gbs JUDGE