JUDGMENT
H.S. Bedi, J.
1. This judgment shall dispose off C.W.P. Nos. 8567 of 1988, 9654 of 1998 and 11055 of 1998. The facts have been taken from C.W.P. No. 8567 of 1998.
2. On the basis of a notification dated 28th March, 1998, Annexure P-l to the petition, the respondent Guru Nanak Dev University issued a prospectus calling for applications for admission to the Post Graduate Medical Courses i.e. MD/MS/Dental in the Government Medical Colleges situated in the State of Punjab. The prospectus provided that 60% of the seats were to be filled in on the basis of an entrance test from amongst eligible PCMS/non-PCMS(Dental)/PDES called in service candidates. Whereas the remaining 40% seats were to be filled up from amongst fresh graduates as also in service candidates. It was also provided that an in-service candidate could be considered under the 60% quota provided such a candidate had three years rural service in the P.C.M.S. and P.C.M.S. (Dental) to his/her credit. Note 2 in Annexure P-l pertained to the distribution of seats and inter-alia stipulated that “after exhausting all the eligible candidates under 60% quota, the vacant seats due to non-availability of eligible candidates, if any, shall be offered to eligible candidates under 40% quota and vice versa”. Para 5 of the prospectus dealt with the determination of merit. It was provided therein that the merit was to be determined on the basis of a common entrance test of eligible candidates and two separate lists of 60% and 40% quota candidates were to be notified. It was further stipulated that only such candidates who had secured at least 50% marks in the competitive entrance test would be called for the compulsory interview. The petitioners who belong to the category of fresh graduates took the post-graduate entrance test in tune with these provisions on 24.5.1998 and on the declaration of the result on 1.6.1998 were found to have qualified for the interview, by securing at least 50% marks. The State of Punjab however, vide a decision taken on the 9th June, 1998 and released to the Press the next day waived the qualifying condition of 50% minimum marks in the Post Graduation Entrance Test, with the result that all candidates became eligible for being called for the interview irrespective of the marks they had obtained in the entrance test. The petitioners have, accordingly, approached this Court on the plea that they had been seriously prejudiced as the criteria for selection had been changed to their detriment, long after the admission process had been set in motion, as they had been denied consideration against the seats that would have been available as an adequate number of in-service candidates had not obtained the 50% floor marks in the entrance test, and this action of the respondent-State being contrary to the settled law was untenable.
3. On notice of motion, a reply had initially been put in on behalf of the respondent-State. On an application filed by respondents No. 5 to 8, some in service candidates, they too were impleaded as parties and have filed their reply as well. In the reply filed by Dr.(Mrs.) Sudesh Khanna, on behalf of respondents No. 1 to 3, it has been pleaded that the condition of securing at least 50% marks in the entrance test was not a condition of eligibility but a factor in the determination of the merit. It has further been pointed out that vide corrigendum dated 19.6.1998 (Annexure R-l), this condition had been waived and reference has, in this regard, been made to a Division Bench decision of this Court in CWP No. 10040 of 1995 (Munish Kumar v. The State of Punjab and Ors.) decided on 31.8.1995, wherein it had been held that it was open to the State Government to change its policy with regard to admissions to the Post Graduate Courses in the Medical Colleges at any time till the process of final admissions was complete. A written statement has also been filed by one of the interveners, Dr. Dinesh Garg – respondent No. 8, and it has been pointed out that the condition of 50% marks was waived for the reason that only 22 in service candidates had obtained the qualifying marks in the entrance test for the M.D./M.S. Course as against the 114 seats reserved for them, and in the course of arguments, it has further been highlighted that against the 40% share falling to the share of the fresh graduates (which came to 74 seats) as many as 379 candidates had qualified the entrance test and that the corrigendum Annexure R-l had been issued to remove this imbalance. It has also been pleaded that in service doctors seeking admission to Post Graduate Courses were doing an essential public service in order to gain eligibility for admission as they were required to have three years service in a rural area to their credit and were also required by bond to serve the State Government for a period of five years after having secured their Post Graduate Degrees. It has further been pointed out that the State Government had taken the decision to issue the corrigendum as the P.C.M.S. Association had raised an objection with regard to the 50% marks as a condition of eligibility soon after its publication.
4. This matter first came up before me on 20.7.1998 and it was ordered to be listed for final hearing on 22nd July 1998. The case was taken up on that day in the afternoon and adjourned to 23rd July, 1998 as part-heard. On 23rd July, 1998, Mr. Hemant Gupta, the learned Additional Advocate General, produced a copy of notification dated 22.7.1998 issued by the State of Punjab, in which it was provided that candidates securing at least 40% marks in the competitive examination will only be interviewed”. A copy of the notification was handed over to Mr. Rajiv Atma Ram, the learned counsel for the petitioners in Court who sought an adjournment to amend the petition. The learned Additional Advocate General, however, very fairly stated that as this was a mere formality, he would not stand on ceremony and as such, the notification dated 22.7.1998 be taken on record as Annexure P-4 immediately and the matter be proceeded with on that basis. The said notification has, accordingly, been impugned as Annexure P-4 to the writ petition.
5. Mr. Atma Ram, the learned counsel for the petitioners has argued that once the prospectus had been issued and the candidates had applied and had also taken the test on the basis of the criteria fixed therein, it was not open to the State Government to change the criteria to the detriment of some of the candidates. Elaborating his argument, he has pointed out that in the event that some of the in- service seats remained unfilled for paucity of eligible candidates, these seats were to be offered to the fresh graduates, and as a large number of such candidates including the petitioners had, in fact qualified the test by securing 50% or more marks the waiver of marks for eligibility vide Annexure R-l and a subsequent fixation of 40% as the floor mark vide Annexure P-4, was bad in law. In this connection, he has relied upon Ravdeep Kaur v. The State of Punjab others, 1985(1) I.L.R. 343. (D.B.) judgment of this Court, Amardeep Singh Sahota v. State Of Punjab and Ors., (19932)104 P.L.R. 212 (F.B.), Raj Singh v. Maharshi Dayanand University, (1994-2)107 P.L.R. 32 (F.B.), Anil Jain, M.S. General Surgery and Ors. v. The Controller of Examinations, Maharshi Dayanand University, Rohtak and Ors., (1997-2)116 P.L.R. 832 and Varinder Singh and Ors. v. State of Punjab and Ors., (1997-3)117 P.L.R. 494 (F.B.), all Full Bench judgments of this Court and Kulmanpreet Singh v. State of Punjab and Ors., 1998(1) Judicial Reports (Labour & Services) 347 (the latest in point of time) a Division Bench judgment of this Court. He had also initially raised the question (and it had been so held by the Supreme Court as also by this Court in various judgments) that a minimum floor mark was required to be obtained by a candidate for the purpose of determining his eligibility for admission to a post graduate medical course and as the Notification Annexure R-l had waived this requirement, it was against the principles laid down in these judgments. (This argument was, however, given up by the learned counsel in the light of the Notification Annexure P-4). He has also urged that the condition of 50% marks had been imposed by the State Govt. after due deliberation and on the basis of the binding instructions issued by the Medical Council of India to that effect and as such, the State Government had no option but to follow them and having followed them once could not discard them at a later stage. In this connection, reliance has been placed on Dr. Sadhna Devi and Ors. v. State of U.P. and Ors., A.I.R. 1997 S.C. 1120.
6. Mr. Hemant Gupta, the learned Addl. A.G. Punjab, representing the official respondents has, however, controverted the arguments raised by Mr. Atma Ram and has contented that no right which had accrued to the fresh graduates had been affected to their detriment as 40% of the seats still remained to their share and as such, the judgments cited by Mr. Atma Ram could not be applied. Reliance has also been placed on two Division Bench judgments of this Court in Major Phalit Sharma v. State of Haryana and Ors., 1997(4) R.S.J. 127 and Ravinder Singh and Ors. v. State of Punjab, (1992-1)101 P.L.R. 313, to plead that the criteria for admission could be changed even after the selection process had been set in motion. Dealing with the argument with regard to the binding nature of the recommendations of the Medical Council of India, Mr. Gupta, has referred to State of M.P. and Anr. v. Kumari Nevedita Jain and Ors., A.I.R. 1981 Supreme Court 2045 and Ajay Kumar Singh and Ors. v. State of Bihar and Ors., 1994(2) S.L.R. 321 to contend that the directions issued by the Medical Council of India in so far as postgraduate admissions were concerned were only recommendatory in nature and ( in the alternative) has argued that as they had not been adopted in the manner set out in Section 33 of the Medical Council of India Act, 1996, they were in-applicable. Supplementing this argument, Mr. Mattewal, the learned Senior Advocate representing the private respondents has focussed his attention on C.W.P. No. 12168 of 1995 Adish Gupta and Ors. v. State of Punjab and Ors., decided on 14th Sept. 1995 and has urged that the State Government was the best Judge of its needs and as to the criteria that was to be adopted in making admissions to educational institutions and as the in-service candidates had to be accommodated and given some preference as they were already in the service of the State of Punjab, a conscious decision had been taken by the State Government to reduce the eligibility marks from 50% to 40% vide the fresh notification dated 22nd July, 1998 Annexure P-4. In this connection, Mr. Mattewal, has placed reliance upon Aditya Kumar Aggarwal v. State of Punjab, 195088(1) R.S.J. 508 and Dr. Rajesh Garg v. State of Punjab, 1996(1) S.C.T. 57). He has also pointed out that in-service candidates who were serving in rural areas far away from educational facilities were at a disadvantage not only with regard to their environment but also due to lack of time for preparation and it was in that situation that the State Government had come to their rescue. On facts, he has urged that the prospectus Annexure P-l had been issued on 26.3.1998, the entrance test held on 24.5.1998 and the result, declared on 1.6.1998 when it was noticed that a very small number of in-service candidates had succeeded in getting the 50% marks for eligibility and it was in this situation that the corrigendum Annexure R-l had been issued on 19th June, 1998. The argument, therefore, is that it was open to the State Government to change its policy to meet a particularly difficult situation.
7. I have heard the learned counsel for the parties at great length and have gone through the record. In Ravdeep Kaur’s case (Supra), while dealing with an identical situation, it was observed by the Division Bench as under:-
“Accordingly, we hold that the eligibility for admission has to be seen according to the prospectus issued before the Entrance Examination and while doing so, we are constrained to hold that admission to the reserved quota of sports candidates shall be governed by the instructions prevailing before July 3, 1981 (Annexure P-4) that is, on the basis of instructions of 1977 (Annexure P-3)”.
8. This principle was reiterated by the Full Bench in Amardeep Sahota’s case (supra) in the following terms-
“The Prospectus cannot subsequently be changed by the State Government to the detriment of students to benefit certain other students. In Ravdeep Kaur v. The State of Punjab and Ors., I.L.R. (1985)1, Punjab and Haryana, 343, a Division Bench of this Court had an occasion to consider the value of a Prospectus issued for admission to an entrance examination. It was held that the eligibility for admission to a course has to be seen according to the Prospectus issued before the entrance examination and that the admission has to be made on the basis of instructions given in the prospectus as the instructions issued have the force of law. We agree with the view taken by the Division Bench”.
9. In Raj Singh’s case (supra), the matter was once again considered by the Full Bench and it was held as under:-
“The college, which is entitled to grant admission, has precisely done what it was required to do and it could not wait in granting admission and has no option but to grant admission as per the options exercised in the admission form and as per the prospectus, support for this view can be had from Ravdeep Kaur v. The State of Punjab and Ors., I.L.R. (1985)1, Punjab and Haryana, 343 and a Full Bench decision of this Court in Amardeep Singh Sahota v. The State of Punjab etc, (1993-2)104 P.L.R. 212. The Full Bench approved the view taken in Ravdeep Kaur’s case (supra) wherein it was held that the eligibility for admission to a Course has to be seen according to the Prospectus issued before the Entrance Examination and that the admission has to be made on the basis of the instruction’s given in the prospectus, these having the force of law”.
10. The matter came up once again before a Full Bench in Anil Jain’s case (supra) and while reiterating the ratio of Sahota’s case, the following observations were made:-
“We are in respectful agreement with the said statement of law. This being the position, we hold that the prospectus decides the rights of the candidates for admission to the Course. When it is seen that the provisions contained in the prospectus have been strictly complied with by the respondents, petitioners are not justified in putting forth claim for admission to the additional seats which were created or to the seats which had fallen vacant subsequently.”
11. In Varinder Singh’s case (supra), yet another Full Bench of this Court while following Ravdeep Kaur’s & Sahota’s Case went still further and observed:-
“All the parties concerned are bound by the terms and conditions of the brochure and they must adhere to them and make admissions on such basis. The authorities also have no right to alter the terms and conditions of the brochure unless and until such power was specifically reserved while making such declarations and that too, it does not infringe the vested rights and is not arbitrary in its implementation”.
12. Three broad principles are, therefore, discernible from the cited judgments firstly, that a prospectus has the force of law, secondly a candidate has a right to seek admission on its basis and on its basis alone, and finally that the conditions stipulated therein cannot be changed to the detriment of any candidate. Applying these principles, it must be held that the change in the criteria for selection by Annexure R-l as superseded by Annexure P-4, cannot stand legal scrutiny.
13. The judgments relied upon by Mr. Gupta and Mr. Mattewal, do not advance the case of the respondents. In the two judgments cited by Mr. Gupta i.e. Major Phalit’s and Ravinder Singh’s cases (Supra) the Division Benches upheld a change in the criteria in the selection to the Punjab Superior Judicial Service. A perusal of these two judgments clearly reveals that they proceeded on the basis that there was an anomaly in the rules in question which made selection of any candidate well nigh impossible and that the proposal for the amendment had, as a matter of fact, been initiated by the High Court to the State Government long before the selection in question. To meet this argument head – on, Mr. Atma Ram, has never theless placed reliance on Umesh Chandra Shukla v. Union of India and Ors., A.I.R. 1985 Supreme Court, 1351, which once again clearly settles the issue in his favour. In this case, a Full Bench meeting of the Delhi High Court changed the system of tabulation of marks to be awarded in the written papers for selection to the Delhi Superior Judicial Service after the written test had been held and as a result whereof, 30 candidates became eligible for appearing in the interview as against 27, who had qualified prior to the change. This action was challenged by some of the 27 candidates who had initially qualified. The matter was ultimately taken to the Supreme Court and it was, inter alia, observed that the giving some additional marks in each paper to the candidates as per the changed criteria, the number of candidates eligible for interview had now increased to 30 and as the 27 candidates who had been successful initially had a vested right to compete only amongst themselves in the selection, the change in the criteria at the instance of the Full bench, was untenable. Although, this judgment too, was on its peculiar facts, the broad principle cannot be ignored that a vested right which is given to a candidate on the basis of a settled criteria, cannot be taken away or modified by a subsequent amendment.
14. Mr. Mattewal, has, nevertheless, laid great emphasis on the decision of the Division Bench of this Court in Munish Kumar’s case (supra) and in particular to the words :-
“Thus, I am of the opinion that it is always open to the State Government to change its policy in regard to admission to the Post-Graduate Courses in the Medical Colleges in the State of Punjab till the process of final admission is completed. As already pointed out, the regular doctors will not acquire any legal or fundamental right for admission in the Post Graduate Courses. Their right to compete with others was not taken away”.
15. It is true that read in isolation, these observations certainly support the respondents case. It is significant, however, that this opinion rendered by Chalapathi, J. was apparently in glaring contradiction to the ratio of the Full Bench in Anil Jain’s case (Supra) which was the unanimous opinion of the three Hon’ble Judges, including T.H.B. Chalapathi, J. It is also evident that this judgment had been rendered in the peculiar facts of the case. In this matter, the State Government had made a recommendation that doctors who had served the State on an adhoc basis for at least three years should also be allowed to appear as in-service candidates in the selection to the Post Graduate Medical Courses pending the regularisation of their services, but before the final orders to that effect could be issued, the entrance test for admission was held. Some in-service adhoc doctors came to this Court and it was in this situation that Chalapathi, J: held that the decision taken by the State Government to recommend adhoc doctors as in-service candidates was in the larger public interest as the field of choice would be extended and better candidates would get admission into the post graduate classes. It is true, as has been contended by Mr. Mattewal that public interest is primary in all such matters but in the case before me today, the public interest, to my mind, is not enhanced by reducing the number of marks with regard to eligibility standards. It bears repetition that by Annexure R-l, the minimum floor marks of 50% had been totally waived and it was during the hearing of the present writ petition, a floor mark of 40% vide Annexure P-4 had been re-introduced. The two other judgments cited by Mr. Mattewal, i.e. Aditya Kumar’s case and Dr. Suresh Sharma and Ors. v. State of Punjab and Ors.,(supra) do not advance the case in the manner suggested by the learned counsel as they only pertain to the situation in which 60% were reserved for in-service candidates and 40% left out for others way back in 1986. As a matter of fact, in Dr. Suresh Sharma’s case (supra), a writ petition had been field by fresh graduates on the plea that as the instructions then stood, the first preference given to in-service candidates was arbitrary and amounted to 100% reservation in their favour as no seat remained vacant against which fresh graduate could be admitted. The argument advanced by the Government counsel was that it was for the State Government to set out a policy in the matter as it was the best judge as to its needs and requirements and more particularly as in-service candidates were bound to serve the State of Punjab after getting their post-graduation qualification, they were entitled to a preferential treatment even if it meant excluding all others. This argument was not entirely accepted and it was held that only 60% seats should be reserved for in-service candidates, whereas 40% seats should be filled from either in-service candidates or fresh graduates on the basis of their qualifying marks.
16. Mr. Mattewal’s argument that in-service candidate were to be given some latitude/relaxation, as their duties and environment left them with little or no time to study for the entrance test is once again to no avail. It is evident from the facts enumerated above that a period of almost two months and intervened between the issuance of the prospectus and the date of the test, and in any event, the Post Graduate Entrance Test being an annual feature, at this time of the year, it cannot be said that any candidate, whether in-service or otherwise, had been taken by surprise.
17. In the light of what has been held above, I deem it unnecessary to go into the other points raised by the learned counsel.
18. For the reasons quoted above, the petitions are allowed, Annexure P-4 is quashed and a direction issued to the respondent-State of Punjab to make admission on the basis of the Notification Annexure P-l. There will, however, be no order as to costs. Dasti order.