{"id":228057,"date":"2003-09-16T00:00:00","date_gmt":"2003-09-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/harish-verma-and-ors-vs-ajay-srivastava-and-anr-on-16-september-2003"},"modified":"2015-03-18T02:28:40","modified_gmt":"2015-03-17T20:58:40","slug":"harish-verma-and-ors-vs-ajay-srivastava-and-anr-on-16-september-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/harish-verma-and-ors-vs-ajay-srivastava-and-anr-on-16-september-2003","title":{"rendered":"Harish Verma And Ors vs Ajay Srivastava And Anr on 16 September, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Harish Verma And Ors vs Ajay Srivastava And Anr on 16 September, 2003<\/div>\n
Bench: R.C. Lahoti, Ashok Bhan<\/div>\n
           CASE NO.:\nAppeal (civil)  1807 of 2003\n\nPETITIONER:\nHARISH VERMA AND ORS.\n\nRESPONDENT:\nAJAY SRIVASTAVA AND ANR.\n\nDATE OF JUDGMENT: 16\/09\/2003\n\nBENCH:\nR.C. LAHOTI & ASHOK BHAN\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003 Supp(3) SCR 833<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
R.C. LAHOTI, J. : Leave granted in SLP (C) Nos. 4965\/03 and 14367-91\/03.\n<\/p>\n
In exercise of the powers conferred by Section 33 read with Section 20 of
\nthe Indian Medical Council Act, 1956, the Medical Council of India has,
\nwith the previous sanction of the Central Government, made the regulations
\ncalled “the Post Graduate Medical Education Regulations 2000” (hereinafter
\nthe Regulations, for short). Regulation 9, relevant for our purpose,
\nprovides as under :\n<\/p>\n
9. SELECTION OF POSTGRADUATE STUDENTS<\/p>\n
(1)     Students for postgraduate medical courses shall be selected
\nstrictly on the basis of their academic merit.\n<\/p>\n
(2)     For determining the academic merit, the university\/institution may
\nadopt any one of the following procedures both for degree and diploma
\ncourses :\n<\/p>\n
(i)    On the basis of merit as determined by a competitive test conducted
\nby the State Government or by the Competent authority appointed by the
\nState Government or by the university\/group of universities in the same
\nState; or<\/p>\n
(ii) On the basis of merit as determined by a centralized competitive test
\nheld at the national level; or<\/p>\n
(iii) On the basis of the individual cumulative performance at the first,
\nsecond and third MBBS examinations, if such examinations have been passed
\nfrom the same university; or<\/p>\n
Provided that wherever entrance test for postgraduate admission is held by
\na state government or a university or any other authorized examining body,
\nthe minimum percentage of marks for eligibility for admission to
\npostgraduate medical course shall be 50 per cent for general category
\ncandidates and 40 per cent for the candidates belonging to Scheduled
\nCastes, Scheduled Tribes and Other Backward Classes :\n<\/p>\n
Provided further that in non-government institutions fifty percent of the
\ntotal seats shall be filled by the competent authority and the remaining
\nfifty percent by the management of the institution on the basis of merit.\n<\/p>\n
(emphasis supplied)<\/p>\n
The first proviso to Regulation 9 in its present form was introduced with
\neffect from 20.9.2001. Earlier the first proviso required the minimum
\npercentage of marks for eligibility as 50 per cent for all the categories
\nof candidates.\n<\/p>\n
In the first week of March 2002 the University of Rajasthan published a
\nnotification announcing the holding of pre-PG examination on 21.4.2002. The
\nminimum qualifying marks were notified as 50 per cent for general category
\ncandidates and 40 per cent for SC\/ST\/OBC candidates consistently with the
\nfirst proviso to Regulation 9. The examination was held on 21.4.2002. The
\nresult of the examination was declared on the next day. On 29.4.2002
\nseveral in-service doctors (i.e the graduate doctors who were serving under
\nthe State of Rajasthan) filed a writ petition laying challenge to the
\nconstitutional validity of the first proviso to Regulation 9 and seeking
\nits being declared ultra vires in its applicability to in-service
\ncandidates. In the alternative, it was prayed that the first proviso
\nabovesaid be declared as inapplicable insofar the seats meant for in-
\nservice candidates in postgraduate medical courses are concerned.
\nConsistently with such declaration it was prayed that the result be
\ndeclared afresh and that the in-service candidates be declared to have
\nqualified for entrance in PG degree\/ diploma courses without insisting on
\nthe prescribed minimum qualifying marks. Several such writ petitions were
\nfiled. It is significant to note that the writ-petitioners before the High
\nCourt were all such doctors who were serving in the State services and who
\nhad participated in the pre-PG examination but had failed in securing the
\nminimum qualifying marks as prescribed by the first proviso to Regulation 9
\nand the notification dated 2nd March, 2002. The High Court issued rule nisi
\nand also passed an interim order to the effect that the unfilled seats in
\nthe in-service category shall be kept vacant during the pendency of the
\nproceedings.\n<\/p>\n
The State of Rajasthan, the University of Rajasthan and the Medical Council
\nof India were all impleaded as parties. In their respective counter-
\naffidavits they supported the validity of Regulation 9 along with its
\nprovisos and submitted that the High Court ought not to modify or make
\ndeparture from the statutory regulations framed by the Medical Council of
\nIndia and the standards laid down by it in the interest of medical
\nprofession.\n<\/p>\n
A learned Single Judge of the High Court who heard a batch of 44 similar
\nwrit petitions directed all the petitions to be dismissed upholding the
\nvalidity of the impugned Regulation.\n<\/p>\n
The writ-petitioners, being aggrieved by the judgment of the learned Single
\nJudge, preferred several intra-court appeals under Section 18 of the
\nRajasthan High Court Ordinance. On 28.8.2002 the Division Bench framed the
\nfollowing questions of law and opining the questions to be of considerable
\nimportance directed all the appeals to be placed for hearing before a Full
\nBench :\n<\/p>\n
1. Whether any reserved quota could not be separately specified for in-
\nservice candidates; merely because such in-service category is not
\nmentioned in Article 15(4) of the Constitution of India?\n<\/p>\n
2. Whether the prescribing of a separate quota for in-service candidates
\nwithstands the test of reasonable classification under Article 14 of the
\nConstitution of India?\n<\/p>\n
On 5.2.2003, vide the judgment impugned herein, the High Court has allowed
\nthe appeals and set aside the judgment of the learned Single Judge. During
\nthe course of its judgment the Full Bench has held that the Regulations
\nframed by the Medical Council of India have only a persuasive value and do
\nnot have any binding force in so far as the State Government is concerned.
\nThe State has the power to prescribe a lower percentage of marks for in-
\nservice candidates. Regulation 9 does not apply to in-service candidates.
\nHowever, the Full Bench held that as the minimum qualifying marks for in-
\nservice candidates could not have a wide disparity with the marks
\nprescribed for general category candidates. It directed that it shall be
\nopen to the State Government to go ahead with the admission of in-service
\ncandidates to the postgraduate courses on the basis of such percentage of
\nqualifying marks which may be lower than 50 per cent but not below 40 per
\ncent, which is the minimum eligibility percentage prescribed for the
\nreserved category candidates.\n<\/p>\n
These are the appeals filed by special leave by the general category
\ncandidates and the Medical Council of India.\n<\/p>\n
On 24.2.2003 leave to appeal was granted under Article 136 of the
\nConstitution. The appellants had sought staying of the operation of the
\njudgment of the Full Bench of the High Court being stayed. Prayer for
\ninterim relief being allowed ex-parte was refused by the Court and notice
\nwas directed to be issued to the respondents. On 4.4.2003 counselling was
\nheld and 126 seats were filled. 75 students from the in-service category
\nwho had secured marks between 40 and 50 per cent participated in the
\ncounseling and have been allotted seats, subject to an undertaking filed by
\neach one of them that the judgment of this Court whenever pronounced shall
\nbe binding on them. During the pendency of these appeals the process of
\nadmission against PG seats for the year 2003 has been completed. 80 in-
\nservice candidates have been allotted seats, out of whom only 18 candidates
\nhave cleared the 50 per cent eligibility criteria. The remaining 62
\ncandidates are ineligible as per the first proviso to Regulation 9. The
\ncounseling for 2003 candidates has been held on 28\/29.8.2003.\n<\/p>\n
When the matter came up for hearing on 19.8.2003 it was brought to the
\nnotice of the Court that various candidates who have been declared
\nsuccessful at the pre-PG examination in accordance with the judgment of the
\nFull Bench of the High Court and who may be dislodged in the event of the
\nappeals being allowed were not noticed. The Secretary, Medical and Health
\nDepartment, State of Rajasthan, was directed to notify on the Notice Board
\nof all the medical colleges in the State of Rajasthan the factum of filing
\nof these appeals and of their coming up for hearing, putting the candidates
\non notice that they could enter appearance and participate in the hearing,
\nif so advised, so as to defend themselves. That compliance has been done.
\nHowever, none of such in-service candidates have chosen to appear.\n<\/p>\n
We have heard Ms. Indu Malhotra, the learned counsel for the appellants
\n(general category non-service doctors), Mr. Salman Khursheed, the learned
\ncounsel for the private respondents who were the writ-petitioners in the
\nHigh Court, Mr. Ranji Thomas, the learned counsel for the State of
\nRajasthan, Mr. Maninder Singh, the learned counsel for the Medical Council
\nof India, and all other learned counsel appearing for the parties.\n<\/p>\n
Ms. Indu Malhotra, the learned counsel for the appellants (private
\nrespondents in the High Court) has carried the Court through the judgment
\nof the Full Bench of the High Court to demonstrate the gross error of law
\nunwittingly committed by the High Court in ignoring the majority view of
\nthe constitution Bench decision of this Court in Dr. Preeti Srivastava and
\nAnr. v. State of M.P. & Ors., [1999] 7 SCC 120. Instead, the learned
\ncounsel submitted, the Full Bench has quoted a few passages from the
\nminority opinion from Dr. Preeti Srivastava’s case (supra) which is at
\nvariance with the majority opinion, and therefore, the judgment stands
\nvitiated. It was further submitted that a recent decision of this Court in
\nThe State of Madhya Pradesh & Ors. v. Gopal D. Tirthani & Ors., JT<\/a> (2003) 6
\nSC 204 clinches the issue and applies squarely to the facts of the present
\ncase, and therefore also the impugned judgment has to be reversed. We find
\nmerit in the submissions so made. It will be useful to extract and
\nreproduce the law laid down by the majority consisting of four learned
\nJudges speaking through Sujata Manohar, J. in Dr. Preeti Srivastava ‘s case
\n(supra). It was held<\/p>\n
(i) the Indian Medical Council Act, 1956, especially the provisions
\ncontained in Sections 16 to 20 of the Act empower the Council to prescribe
\nthe minimum standards of medical education required for granting recognized
\nmedical qualifications other than post-graduate medical qualifications by
\nthe Universities or medical institutions, as also to prescribe the minimum
\nstandards of postgraduate medical education. The Universities must
\nnecessarily be guided by the standards prescribed under Section 20(1) if
\ntheir degrees or diplomas are to be recognized under the Medical Council of
\nIndia Act. An earlier decision of this Court in Ajay Kumar Singh andOrs. v.
\nState of Bihar and Ors., [1994] 4 SCC 401 taking the view that the
\nstandards of postgraduate medical education prescribed by the Medical
\nCouncil of India are merely directory and the Universities are not bound to
\ncomply with the standards so prescribed was overruled (para 55);\n<\/p>\n
(ii) The Medical Council Regulations have statutory force and are
\nmandatory. The Act contemplates the Medical Council of India having been
\nset up as an expert body to control the minimum standards of medical
\neducation and to regulate their observance. It has implicit power to
\nsupervise the qualifications or eligibility standards for admission to
\nmedical institutions. The Medical Council has to keep overall vigilance to
\nprevent sub-standard entrance qualifications for medical courses. These
\nobservations apply equally to postgraduate medical courses (para 57);\n<\/p>\n
(iii) A common Entrance Examination envisaged under the Regulation framed
\nby the Medical Council of India for postgraduate medical education requires
\nthe fixing of minimum qualifying marks for passing the examination since it
\nis not a mere screening test;\n<\/p>\n
(iv) Whether any lower minimum qualifying marks (than the one prescribed by
\nthe first proviso to Regulation 9) can be prescribed at the postgraduate
\nlevel of medical education is a question which must be decided by the
\nMedical Council of India since it affects the standards of postgraduate
\nmedical education. Prescribing the percentage of 20 per cent for the
\nreserved category and 45 per cent for the general category is not
\npermissible; the same being unreasonable at the postgraduate level and
\ncontrary to the public interest.\n<\/p>\n
However, the Full Bench of the High Court has referred to several
\nobservations made vide para 77 and para 116 of Dr. Preeti Srivastava’s case
\n(supra) wherein the dissenting opinion has disagreed with the conclusions
\nreached by the majority that the fixing of minimum qualifying marks for
\npassing the entrance test for postgraduate course is concerned with the
\nstandards of postgraduate medical education. Vide para 116, the dissenting
\nopinion has held that the Regulation and guidelines given by the Medical
\nCouncil of India are persuasive and do not have any binding force, which
\nare to be kept in view only broadly and that it is permissible for the
\nState authorities to short-list the eligible and qualified MBBS doctors for
\nbeing considered for admissions to postgraduate medical courses in the
\ninstitutions of the State, and for the purpose of such short-Using full
\npleasure is available to the State authorities to exercise legislative or
\nexecutive power. With respect to the learned Judges constituting the Full
\nBench of the High Court, we have to say that they could not have relied on
\nthe dissenting opinion of one learned judge, overlooking the majority
\nopinion which is the law laid down by the Constitution Bench and has the
\nbinding force.\n<\/p>\n
The issue arising for decision before the Full Bench of Rajasthan High
\nCourt, arose for decisions in a very similar background in The State of
\nMadhya Pradesh & Ors. v. Gopal D. Tirthani & Ors., JT<\/a> (2003) 6 SC 204.
\nDealing with the question of why a common entrance test is necessary and
\nwhy an exception cannot be carved out in favour of in-service candidates by
\nlowering the standards below the ones permitted by the Medical Council of
\nIndia, this Court, following Dr. Preeti Srivastava ‘s case, opined as under
\n:\n<\/p>\n
“A pass mark is not a guarantee of excellence. There is a great deal of
\ndifference between a person who qualifies with the minimum marks and a
\nperson who qualifies with high Marks. If excellence is to be promoted at
\nthe postgraduate level, the candidates qualifying should be able to secure
\ngoods marks while qualifying. Attaining minimum qualifying marks has direct
\nrelation with the standards of education. Prescription of qualifying marks
\nis for assessment of the calibre of students chosen for admission. If the
\nstudents are of a high calibre, training programmes can be suitably moulded
\nso that they can receive the maximum benefit out of a high level of
\nteaching. If the calibre of the students is poor or they are unable to
\nfollow the instructions being imparted, the standard of teaching
\nnecessarily has to be lowered to make them understand the course which they
\nhave undertaken; and it may not be possible to reach the levels of
\neducation and training which can be attained with a bright group. The
\nassemblage of students in a particular class should be within a reasonable
\nrange of variable calibre and intelligence, else the students will not be
\nable to move along with each other as a common class. Hence the need for a
\ncommon entrance test and minimum qualifying marks as determined by experts
\nin the field of medical education.”\n<\/p>\n
It was held that the selection of students who had secured marks less than
\nthe minimum marks prescribed by the Medical Council of India’s Regulation
\non account of reduction in the minimum marks in the entrance examination
\nmade by the State Government, was liable to be struck down and ignored. If
\nthe State has a case for making a departure from the standards laid down by
\nthe Medical Council of India or for carving out of exception in favour of
\nany identifiable class of persons, then it is for the State to represent to
\nthe Central Government and\/or the Medical Council of India and make out a
\ncase of Justification before the Medical Council of India. “The in-service
\ncandidates may have been away from academics and theories because of being
\nin service. Still, they need to be assessed as eligible for entrance in
\nP.G. For taking up such examination, they must either keep updating
\nthemselves regularly or concentrate on studies preparatory to entrance
\nexaminations but without sacrificing or compromising with their obligations
\nto the people whom they are meant to serve on account of being in State
\nservices.”\n<\/p>\n
Out of the several conclusions summed up by the Court the one relevant for
\nthe purpose of the present case is – “There can be only one common entrance
\ntest for determining eligibility for post graduation or in-serivce
\ncandidates and those not in service. The requirement of minimum qualifying
\nmarks cannot be lowered or relaxed contrary to the Medical Council of India
\nregulations framed in this behalf. The court has observed that subject to
\nsecuring the minimum qualifying marks if the in-service candidates
\nformulate a class by themselves for whom a separate channel of entry has
\nbeen carved out then within the group there may be scope for assigning
\nwieghtage for rural service rendered for the purpose of determining order
\nof merit inter se, but such weightage cannot be utilized for the purpose of
\nrelaxing the condition as to minimum qualifying marks as prescribed by the
\nMedical Council of India.\n<\/p>\n
The decision of the Full Bench of the High Court, having been rendered in
\nignorance of the binding law laid down by the majority opinion in the
\nConstitution Bench decision of this Court in Dr. Preeti Srivastava and
\nAnr., (supra) and also being inconsistent with the decision of this Court
\nin the case of Gopal D. Tirthani & Ors. (supra), is liable to be set aside.
\nThe appeal is allowed. The impugned judgment of the Full Bench of the High
\nCourt of Rajasthan is set aside and the judgment given by the learned
\nsingle Judge is restored.\n<\/p>\n
As a consequence, the admissions given to such of the in-service candidates
\nwho have secured marks less than the minimum prescribed by Regulation 9
\nframed by the Medical Council of India are struck down and set aside. The
\ncounselling shall have to be done afresh to the extent necessary. We are
\nconscious of the fact that there would be some delay in commencement of
\npost-graduation studies and to some extent the 2002 and 2003 batches would
\noverlap. However, that is a situation which cannot be avoided. It is an
\ninevitable consequence for which the successful candidates for the year
\n2002 and 2003, i.e. those who will be held entitled for admission in post-
\ngraduation courses of studies consequent upon this judgment, cannot be made
\nto suffer for no fault of theirs. It will be for the State of Rajasthan, if
\nnecessary then in consultation with the Medical Council of India, to sort
\nout the difficulties and to run the regular course of the studies.\n<\/p>\n
No order as to the costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Harish Verma And Ors vs Ajay Srivastava And Anr on 16 September, 2003 Bench: R.C. Lahoti, Ashok Bhan CASE NO.: Appeal (civil) 1807 of 2003 PETITIONER: HARISH VERMA AND ORS. RESPONDENT: AJAY SRIVASTAVA AND ANR. DATE OF JUDGMENT: 16\/09\/2003 BENCH: R.C. LAHOTI & ASHOK BHAN JUDGMENT: JUDGMENT 2003 Supp(3) SCR 833 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-228057","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHarish Verma And Ors vs Ajay Srivastava And Anr on 16 September, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/harish-verma-and-ors-vs-ajay-srivastava-and-anr-on-16-september-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Harish Verma And Ors vs Ajay Srivastava And Anr on 16 September, 2003 - 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