JUDGMENT
R.L. Narasimham, C.J.
1. These three writ petitions deal with the same questions of law and fact, and hence were heard together, and will be disposed of in one judgment. The number of the Annexures given in this judgment are those given in Civil Writ Jurisdiction Case No. 97 of 1968.
2. There are two Government Medical Colleges in the State of Bihar, one at Darbhanga and the other at Ranchi, where students are admitted for the B.B.B.S. Course. Sometime in October, 1967, applications were invited for admissions to the said course. The qualifications prescribed for such admissions were as follows (Annexure A): The applicants should have passed either (i) the First Year Science of Three-year Degree Course with Physics, Chemistry and Biology, or (ii) Pre-medical or Pre-Professional Examination or any other examination equivalent thereto. In the prospectus for admission, it was further stated that “Candidates with B. Sc. (Honours) are admitted straightway to the course provided Honours has been obtained in one of the following subjects: (a) Physics, (b) Chemistry, (c) Botany, and (d) Zoology”-see paragraph 2 of Annexure E (hereinafter referred to as the impugned circular). It is admitted that this circular about the admission of B. Sc. (Honours) candidates straightway was issued by the Government of Bihar. The three petitioners had all passed the First Part of the Three-year Degree Course with Physics, Chemistry and Biology from the Bihar University, and the total marks obtained by them were 57.2 per cent (petitioner in C.W.J.C. 97), 57.8 per cent (petitioner in C. W. J. C 104) and 57 per cent (petitioner in C. W. J. C. 111). They were, however, not admitted, and respondent Nos. 6 to 20, who had passed B. Sc. (Honours), were admitted, even though the percentage of marks obtained by them was very much lower than the percentage of marks obtained by the petitioners. This was mainly because of the impugned circular (mentioned above), which directed that B. Sc. (Honours) applicants should be admitted straightway, irrespective of the marks obtained by them. The petitioners have challenged this action of the authorities on two grounds:
(i) The impugned circular is invalid because it is inconsistent with the statutory regulations made by the All India Medical Council, Prescribing the minimum marks for admission to Medical Course; and
(ii) Even if it be held that the qualifications prescribed by the All India Medical Council have no statutory force, nevertheless the impugned circular is unconstitutional as violative of Article 14 of the Constitution.
3. The All India Medical Council (hereinafter referred to as the Council) is a statutory body constituted under the provisions of the Indian Medical Council Act, 1956 (hereinafter referred to as the Act). That Act underwent extensive amendments by the Indian Medical Council (Amendment) Act, 1964. A new Section 19A, which was inserted in the Act, may be quoted:
Minimum standards of medical education. 19A. (1) The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than post-graduate medical qualifications) by Universities or medical institutions in India.
(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or any amendment thereof, as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(3) The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit.
Consequential amendments were also made to Section 33 of the Act, conferring power on the Council to make regulations and a new Clause (j) was inserted in that Section to the following effect:
the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in Universities or medical institutions for grant of recognised medical qualifications;
Sometime in November, 1964, the Council adopted the following regulations (omitting immaterial portions), dealing with admission to Medical Course (Annexure G):
PROFESSIONAL EDUCATION RECOMMENDATIONS OF THE MEDICAL COUNCIL OF INDIA Adopted by the Medical Council of India on 22/27th November, 1964 (UNDER-GRADUATE MEDICAL CURRICULAR).
1. ADMISSION TO THE MEDICAL COURSE.
No candidate should be allowed to begin the medical curriculum proper until:
* * *
(ii) He has passed:
(a) The Intermediate examination in the medical group of an Indian University which includes a practical test:
or
(b) The intermediate examination in Arts or Science of an Indian University with Physics, Chemistry and Biology and which shall include a practical test in these subjects:
or
(c) B. Sc. examination of an Indian University if Physics, Chemistry and Biology have been taken in the intermediate examination with a practical test in these subjects.
Note-A student who has passed the B. Sc. Examination with two of the three subjects mentioned above, would be admitted to the medical course if he passed the third subject in pre-professional.
or
* * *
(f) The Pre-Professional Examination (Pre-Medical) after passing either the Higher Secondary School Examination or the Matriculation or equivalent examination and the Pre-University examination with Physics, Chemistry, Biology and English.
(iii) And the candidate has psssed the above examination with compulsory English.
Note: (1) * * *
(2) Candidates should have obtained not less than 45% marks at any of the University examination, mentioned under 1 (ii).
(3) * * *.
These regulations were described as “recommendations of the Medical Council of India” dealing with Under-graduate Medical curriculum. It will be noticed that, though B. Sc. examination of an Indian University is prescribed as one of the qualifications, B. Sc (Honours) examination is not expressly referred to; but it is stated on affidavit by one Shri Baleshwar Prasad Singh on behalf of the Government of Bihar that the main difference between B. Sc. (Pass) and B. Sc. (Honours) in Bihar lies in the fact that, in the B. Sc. (Honours) course, advanced course of study is prescribed in the subject offered for the Honours examination and minimum pass mark of 45 per cent is required in that subject. It may, therefore, be taken as unchallenged that the main difference between B. Sc. (Pass) and B. Sc. (Honours) in Bihar is in the higher standard and Proficiency required for the Honours course in the subject offered; but, in respect of all other subjects, the standard is just the same. Further difference arises as regards the minimum percentage required for passing the examination. A candidate offering B. Sc. (Honours) must obtain, at least, 45 per cent of the marks in the subject offered; whereas such a higher minimum percentage is not required for B. Sc. (Pass). The significance of this difference will be dealt with later. It is also not challenged that Part I of the Three-year B. Sc. Degree Course will come within Sub-clause (f) of Clause (ii) of regulation 1, mentioned above. Note (2) to that regulation, however, requires that the candidate should have obtained not less than 45 per cent of the marks in any of the examinations mentioned in regulation 1, viz., either B. Sc. or Part I of B. Sc. or I. Sc. or in any other examination. A doubt arose as to whether this minimum of 45 percent is required only in the subjects of the medical group, viz., Physics, Chemistry and Biology (which includes Botany and Zoology), or else whether it should be 45 per cent in all the subjects taken together for the examination. A query was made to the Council (Annexure F), and the Executive Committee of the Council replied as follows:
As regards No. 1 the Executive Committee was of the opinion that 45% of the marks should be of the examination as a whole and not of the optional subjects only.
By virtue of this clarification, therefore, it may be taken as well established that the minimum pass marks prescribed by the Council in its regulation is 45 per cent in all the papers taken together and not 45 per cent in Physics, Chemistry and Biology only.
4. In December, 1967, the Council was again consulted by the Government of India as to whether extra weightage should be given to B. Sc. candidates seeking admission to the Medical Course over other candidates. One of the suggestions made to the Council was that 10 per cent should be added to the marks given to the candidates of B. Sc. Degree either in second or third division; but item 38 to Annexure B shows that, though the Executive Committee of the Council had no objection to give 10 per cent weight-age for B. Sc. candidates, who have passed in second division, it was not in favour of giving any weightage to B. Sc. candidates with third division. This matter does not appeal to have yet been placed before the Council, though the Executive Committee has expressed its opinion on the subject.
5. Long before the Council prescribed the minimum qualifications for admission, the Government of Bihar had, as early as 1956, directed that candidates with B. Sc. (Honours) Degree should be admitted straightway to the Medical course, provided honours had been obtained in (a) Physics, (b) Chemistry, (c) Biology, (d) Physiology, (e) Anatomy and (f) Anthropology. These instructions were, later on, reviewed by another committee consisting of the then Principals of Patna, Darbhanga and Ranchi Medical Colleges, and, in May, 1961, slight modication was effected, and it was recommended that only those B. Sc. (Honours) candidates who have passed B. Sc. (Honours) in Physics, Chemistry, Botany and Zoology should be admitted straightway. This recommendation was accepted by the Government, and
communications were issued to all concerned sometime in October, 1961, Paragraph 2 of Annexure E (the impugned circular) is based on this decision of the Government. In December, 1967, however, Dr. Nawab, the Principal of Darbhanga Medical College, addressed a letter (Annexure B-l) to the Director of Health Services, Bihar, saying that he and the Principal of the Ranchi Medical College “were strongly of the opinion that students with B. Sc. (Hons.) be not taken straightway and be only allowed some credit for having gone through the B. Sc. course and having secured Honours”. He wanted modification of the Government instructions on the subject; but the Government did not modify the same, and hence he was compelled to make admissions on the basis of the impugned circular. Presumably, this view of Dr. Nawab was partly influenced by the regulation made by the Council regarding admission to Medical course (already quoted) and the view expressed by the Executive Committee of the Council regarding weightage to B. Sc. candidates (enclosure to Annexure B).
6. There was acute controversy between the parties as to whether the regulations contained in Annexure G have statutory force or not. Mr. Basudeva Prasad for the petitioners urged that these were made by the Council in the exercise of the power conferred by Section 19A of the Act, and hence they should be held to have statutory force, and, as such, binding on the Government. The Additional Government Pleader for the State of Bihar, however, contended that these regulations are still in the recommendatory stage, and they have not been finalised as required by Section 19A, and, hence, have only advisory value. In support of this contention, he filed before us a telegram in reply sent by the Council to a specific query made on the subject during the course of the hearing of these writ petitions. The Council’s telegram is as follows:
Under-graduate curriculum under consideration Central Government for inclusion under Regulations.
In the absence of any other material, I accept this statement as correct, and hold that the regulations contained in Annexure G are still in the recommendatory stage, and they have not yet become statutory regulations under the Act. Sub-section (2) of Section 19A requires that every draft regulation should first be sent to all State Governments for their opinion, and they have to be subsequently sanctioned by the Central Government. In the absence of any evidence that these were formally sanctioned by the Central Government, I would uphold the contention of the Additional Government Pleader, and hold that Annexure G has only advisory value. Annexure F, being a mere clarification of note 2 of Annexure G, will also have only advisory value. Similarly, the decision of the Executive Committee regarding giving weightage of 10 per cent of the marks to those B. Sc. candidates who have obtained second-class will also have only recommendatory value. The extreme contention put forward by Mr. Basudeva Prasad for the petitioners that the impugned instructions must be struck down as invalid because they contravene the statutory regulations made by the council must be rejected.
7. But Mr. Basudeva Prasad’s main contention is based on Article 14 of the Constitution. According to him, the classification of B. Sc. (Honours) candidates as a separate class may be rational; but any direction to the effect that they should be admitted straightway irrespective of the marks obtained by them either in the subjects in which honours course was offered or in the other subjects, ignoring the claims of the candidates who have passed
B. Sc. (pass) or Part I of B. Sc. (pass) with higher percentage of marks, would be unreasonable, and that, consequently, there was no reasonable nexus between the basis of the classification on the one hand and the object to be achieved on the other.
8. Even though the regulations contained in Annexure G may not yet have obtained statutory force, nevertheless great weight should be attached to the opinion of the Council as regards the minimum marks required for admission to the Medical course. The Council required 45 per cent as the minimum in the entire examination taken as a whole and not in the subjects in the medical group, viz., Physics, Chemistry and Biology (including Botany and Zoology) only. The Council also did not indicate any special preference to any of these subjects over the other. Thus, the Council did not. say that Biology should be preferred to Chemistry or else that Chemistry should be preferred to Physics. The difference between B. Sc. (Pass) and B. Sc. (Honours) is only in respect of specialisation in the particular subject, in which the honours degree is offered. Thus, a B. Sc. (pass) candidate, taking Physics, chemistry and Biology and a B. Sc. (Honours) candidate, offering honours in Biology only, will be taking the same examination in the other two subjects, viz., Physics and Chemistry, though, in Biology, the latter’s knowledge will be of an advanced nature, and he will have to answer extra papers. Moreover, a person can pass in B. Sc. (pass course), even though the total marks obtained by him may be below 45 per cent; whereas the B. Sc. (Honours) candidate cannot pass unless he secures 45 per cent in the subject in which honours course is offered. But there is no such minimum in respect of the other subjects offered by him. Thus, we may meet with some instances where a B, Sc. (Pass) candidate has secured say 80 per cent in Physics, Chemistry and Biology, whereas a B. Sc. candidate, who,
uttering honours in Biology, has secured the minimum of 45 per cent in that subject and less than 45 per cent in Physics and Chemistry, in which subjects he has answered the same papers as the B. Sc. (Pass) candidate. The only distinction between the two is in the fact that, in the honours subject, viz., Biology, he studied for an advanced course and answered extra papers. The crucial question for consideration is whether, on account of this difference, it will be reasonable to direct that all candidates having B. Sc. (Honours) degree should be admitted straightway, and should thus be preferred to candidates with B. Sc. (Pass) degree irrespective of the marks obtained by them. It appears to me that such a direction will be unreasonable and violative of Article 14. The Additional Government Pleader is, undoubtedly, right in saying that B. Sc. (Honours) candidates may be taken as a separate group or class by themselves; but there seems no reasonable nexus between the principle on which this classification is made and the object to be achieved by the impugned regulations, viz., securing suitable candidates for admission to the Medical course. In considering the reasonableness of the nexus, the view expressed by such an expert body as the All India Medical Council in note (2) to regulation 1 of the Under-graduate Medical Curriculum (Annexure G) as clarified by the Executive Committee of the Medical Council in annexure F should be given great weight. The Council has insisted that the minimum qualification should be 45 per cent marks in all the subjects taken together, irrespective of whether the qualifying examination is I. Sc, or B. Sc. or Pre-Professional Examination (Pre-Medical). The impugned circular, however, directs the admission of a B, Sc. (Honours) graduate if he has secured the minimum of 45 per cent in the subject offered and the minimum pass marks (below 45 per cent) in the other subjects. The primary object to be achieved by the impugned circular (Annexure E) and Annexure G is to see that merit is the main basis for admission to the Medical course subjects, of course, to the requirement about minimum qualification. Hence, a blanket order, directing automatic admission to the Medical course of a B. Sc. (Honours) graduate, irrespective of the marks obtained by him, will not satisfy the test of “reasonableness” of the nexus between the basis of the classification and the object to be achieved. If the marks obtained are completely ignored and B. Sc. (Honours) candidates are admitted straightway, it may be very unfair to those B. Sc. (Pass) candidates who have got much higher marks. Moreover, as pointed out by Dr. Nawab in his letter to the Director (Annexure B-l), a large number of candidates (amounting to 165) with B. Sc. (Honours) degrees filed applications for admission. If all of them are to be given seats straightway, very few seats may be left for candidates with other qualifications, such as those who have passed B. Sc. (pass) course or B. Sc. Part 1. In some years, no seats may be available to such candidates and the other qualifications prescribed by the Medical Council for admission to the Medical Course will become a dead letter. It is true that those who have taken advanced study in one of the subjects of the medical group, viz., Physics, Chemistry or Biology, should be given some preference, and this seems to be the reason why the Government of India also were tentatively of the view that some weight-age in the marks may be given to them in making the selection. The Executive Committee of the Council also was willing to accept such weightage to B. Sc. candidates except those who passed in third division; but to go further and say that B. Sc. (Honours) candidates should be admitted straightway would mean, in effect, that a majority of the seats in these Colleges, would be reserved for B. Sc. (Honours) candidates, leaving very few seats for candidates with lesser qualifications. Both the Principals of the Medical Colleges of Darbhanga and Ranchi were strongly against such reservation, and they supported the alternative view that they should get some weightage, though the Government of Bihar have not accepted their suggestion. During the late stage of the argument before this Court, an affidavit was filed by an assistant of the Health Department of the Government of Bihar to the effect that his Secretary, Shri Khanna, had a telephonic talk with the Principal of the Ranchi Medical College, Dr. Mitra, and that the latter informed him on the’ phone that the reservation of seats for B. Sc. (Honours) candidates was based on a reasonable criterion, and that he was prepared to swear an affidavit to that effect. This affidavit of the assistant of the Health Department cannot be accepted for this purpose because he has no personal knowledge of the same. The Health Secretary, Shri Khanna, has not come forward to swear an affidavit about the talk between him and Dr. Mitra. The arguments were closed on the 29th March, 1968, and the cases were reserved for judgment. On the 2nd April, 1968, however, the Additional Government Pleader for the respondents filed an affidavit of Dr. Mitra. Mr. Basudeva Prasad for the petitioner, however, objected to the consideration of the affidavit filed at such a belated stage. We, therefore, rejected the prayer of the Additional Government Pleader for the taking into consideration of the affidavit of Dr. Mitra filed on the 2nd April, 1968. On the materials on record, therefore, I am of the view that it was unreasonable to reserve seats for B. Sc. (Honours) candidates irrespective of the marks obtained by them, though weightage may be given to them. The impugned circular (paragraph 2 of Annexure E) should, therefore, be held to be unconstitutional as violative of Article 14 of the Constitution, and must be struck down.
9. It was urged by the respondents that, even if the impugned circular was struck down, the petitioners had no reasonable chance of securing admission because there are many other candidates who have secured higher marks and who will have to be preferred. This argument, however, overlooks the main relief asked for by the petitioners. They have not stated that they were entitled to admission on the basis of the marks obtained by them. All that Mr. Basudeva Prasad has urged on their behalf is that they are entitled to consideration of their applications in accordance with the rules and instructions which do not violate the provisions of the Constitution. This right of proper consideration of an application according to valid instructions after ignoring the unconstitutional part of the same is a right distinct from the right of securing admission. This distinction was pointed out in
Umesh Chandra Sinha v. V, N. Singh A.I.R. 1968 Pat. 3. Mr. Basudeva Prasad is prepared to take the risk involved if, even after rejecting the impugned circular, candidates with better qualifications are preferred to the petitioners.
10. The next question for consideration is the nature of the relief that should be given to the petitioners. These applications were filed on the 8th February, 9th February and 13th February, 1963. In Civil Writ Jurisdiction Case No. 104 of 1968, on the 12th March, 1968, the Additional Government Pleader for the respondents gave an undertaking that the status quo would be maintained. This undertaking was recorded in all the three writs. Till then, however, many admissions have already taken place, and the students, who have been admitted, must have joined the medical course, and paid the necessary fees. It will not be proper to cancel all their admissions, even though those admissions might have been based on the impugned circular which has been held to be unconstitutional. The petitioners are partly to blame for this result. As early as October, 1967, the authorities had intimated to the intending candidates that the qualifications for admission would be those provided in the prospectus, and, in the said prospectus, the provision contained in the impugned circular was clearly mentioned. Hence, the petitioners should have moved the Court soon afterwards for striking down the unconstitutional portion of the circular; but tins was not done. They took the risk of applying for admission on the basis of the existing prospectus (including the impugned circular), and it was only when their applications were rejected that they moved this Court in February. The undertaking of the Additional Government Pleader was obtained only nearly a month later on, viz., on the 12th March, 1968. Under these circumstances, I am not inclined to direct the cancellation of the admissions already made prior to the 12th March, 1968, viz., the date on which the Additional Government Pleader gave the undertaking that the status quo would be maintained. All admissions made prior to that date will stand. But the number of seats which remained unfilled on that date should be filled up in accordance with law after ignoring the impugned circular, viz., paragraphs 2 of Annexure E. Candidates with B. Sc. (Honours) degree should not be admitted straightway, though weightage may be given to them as suggested in the enclosure to Annexure B. There will be no order for costs.
11. The three writ petitions are, accordingly, allowed.
B.D. Singh, J.
12. I agree.