Judgment:
Oral Judgment: (Dr. D.Y. Chandrachud J.)
Rule, by consent returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal.
2. Leave to amend in terms of the draft handed in and taken on record. Amendment to be carried out within two weeks from today.
3. The Petitioner passed the BDS course in 2006 and is a student of the post-graduate MDS course in the discipline of Orthodontics and Dentofacial Orthopedics at Y.M.T. Dental College, Navi Mumbai. She appeared in the annual examination conducted by the Maharashtra University of Health Sciences, on 1 June 2012. In the results declared on 4 August 2012, the Petitioner was declared to have failed the examination. The Petitioner applied for revaluation on 7 August 2012 of which the results are pending.
4. In these proceedings, the Petitioner has sought to challenge the legality and validity of the Rules framed by the first Respondent in regard to the standard of passing on the ground that they are contrary to the Rules framed by the Dental Council of India, which is impleaded as the Second Respondent.
5. The Second Respondent has also filed its reply to the Petition.
6. The Dental Council of India has framed the DCI Revised MDS Course Regulations, 2007 which were published in the Gazette of India on 21 November 2007. The Regulations provide for the system of examination, distribution of marks at the University Examination and criteria for passing in the concerned speciality. The written examinations consist of four papers (Papers I, II, III and IV) each of which carries 75 marks. Thus, the four written papers carry 300 marks. The practical and clinical examination carries 200 marks. The Viva-voce carries 100 marks. The criteria of passing is as follows:
âCRITERIA FOR DECLARING AS PASS:
To pass in the University examination, a candidate shall secure in both theory examination and in practical/clinical including viva voce independently an aggregate of 50% of total marks allotted (150 marks out of 300 allotted for theory and 150 out of 200 for clinical + 100 for viva voce together). A candidate securing less marks as described above shall be declared to have failed in the examination.â
The First Respondent by notification dated 22 July 2010 published the Scheme of examination for the Revised MDS Course (No.18/2010). The First Respondent has prescribed respectively 300 marks for the written examination in theory subjects, 200 marks for the practical and clinical examination and 100 marks for the viva-voce. However, the First Respondent has stipulated that every candidate has to secure a minimum of 50% marks in each paper of the theory examination and a minimum of 50% marks in the practicals.
7. According to the Petitioners, the standard of passing which has been prescribed by the First Respondent is inconsistent with the criteria for passing stipulated by the Dental Council of India and is, therefore, unlawful. The submission of the Petitioner is that under the criteria prescribed by the Dental Council of India a candidate has to secure 50% of the total marks allotted, (150 out of 300 for the theory examination) and it is not necessary that a candidate should secure 50% marks in every one of the papers for the theory examination. In so stipulating, the Petitioner contends, the First Respondent has acted contrary to the norms stipulated by the Dental Council.
8. The issue which has been raised before the Court is not res integra. In State of Tamil Nadu and Anr. vs. Adhiyaman Educational and Research Institute and Ors. (1995) 4 SCC 104), the Supreme Court while considering the power of a state authority to prescribe conditions for the grant of admission, in relation to the stipulations made by the AICTE under Central legislation has held as follows:
â41. (v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the center or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.
41. (vi) However, when the situations/ seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally.â
(emphasis supplied)
Subsequently a Constitution Bench of the Supreme Court in Dr. Preeti Srivastava v. State of M.P. (1999) 7 SCC 120)held that the State cannot while controlling education, including medical education, impinge on standards in institutions for higher education. While prescribing the criteria for admission to institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I of the Seventh Schedule to the Constitution. In that context, the Supreme Court held as follows:
âNorms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education.â
9. In a subsequent decision decision in State of T.N. v. S.V. Bratheep (2004) 4 SCC 513)a Bench of three learned Judges of the Supreme Court held that if a higher norm is prescribed by the State Government than what has been prescribed by the AICTE, it could not be said that it is in any manner adverse to the standards prescribed by the AICTE or that it reduces the standards fixed by it. The Supreme Court held as follows:
â9. ...If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it? In our opinion, it does not.... The manner in which the High Court has proceeded is that what has been prescribed by AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even higher as stated by this Court in Dr. Preeti Srivastava's case. It is no doubt true, as noticed by this Court in Adhiyaman's case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges..... Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastava's case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.â
10. In a more recent judgment of the Supreme Court in VisveswaraiahTechnological University and Anr. vs. Krishnendu Halder and Ors. (2011) 4 SCC 606)all these earlier judgments were revisited and the position which emerges was summarized as follows:
(i) While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by the Central Body/AICTE. The term `adversely affect the standards' refers to lowering of the norms laid down by Central Body/AICTE. Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the Central Body/AICTE.
(ii) The observation in para 41(vi) of Adhiyaman to the effect that where seats remain unfilled, the state authorities cannot deny admission to any student satisfying the minimum standards laid down by AICTE, even though he is not qualified according to its standards, is not good law.
(iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/University would cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them, they will continue to apply in spite of the fact that there are vacancies or unfilled seats in any year. The main object of prescribing eligibility criteria is not to ensure that all seats are in colleges are filled, but to ensure that excellence in standards of higher education is maintained.
(iv) The State/University (as also AICTE) should periodically (at such intervals as they deem fit) review the prescription of eligibility criteria for admissions, keeping in balance, the need to maintain excellence and high standard in higher education on the one hand, and the need to maintain a healthy ratio between the total number of seats available in the state and the number of students seeking admission, on the other. If necessary, they may revise the eligibility criteria so as to continue excellence in education and at the same time being realistic about the attainable standards of marks in the qualifying examinations.
11. The principle is that a University constituted under state legislation is not foreclosed from prescribing a higher minimum norm in the interests of promoting the excellence of education. The prescription of a higher norm does not adversely affect the standards prescribed by a central body acting under central legislation. What is impermissible for the State is to lower the standards of education prescribed under Central legislation.
12. The submission which has been urged on behalf of the Petitioner however is that the judgment in Visveswaraiah (supra) dealt with the issue of admissions whereas the present case deals with the standards of passing. Moreover, it was urged that in the present case what the First Respondent has done is to prescribe a higher standard for passing than what is prescribed by the Dental Council and, therefore, there is an inconsistency between the Rules as sought to be implemented by the First Respondent with the binding stipulations made by the Dental Council.
13. Now while dealing with the submissions it may be noted that the Dental Council in its affidavit has specifically stated that the provisions contained in the Regulations framed by the First Respondent are not in contravention of those contained in the Regulations framed by the Dental Council. The affidavit states that the Regulations of the Dental Council of India are the âbare minimumâ providing for standards of examination and for recognition of dental qualifications under the Dentists Act and it is open to the State Government including the State University to prescribe a higher standard over and above the minimum prescribed in the DCI Regulations. Reliance has been placed on the judgment of the Supreme Court in Visveswaraiah (supra). In view of the subsequent judgment of the Supreme Court construing the observations in Adhiyaman (supra), the contention of the Petitioner cannot be accepted. The Dental Council has laid down the minimum standard of passing, a bare minimum, as the affidavit before the Court states. It is open to the State University to prescribe a higher standard which will not impinge on or have an adverse effect on the standards of education in institutes of higher education. Where a minimum is laid down by a body constituted under central legislation, a State University cannot lower those standards. But the prescription of a higher standard of passing would subserve the purpose of excellence of education. This principle does not merely apply to matters of eligibility for admission but also applies to the standard of passing. The minimum standard which has been prescribed by the Dental Council only provides that a candidate must receive 50% marks in the aggregate (150 out of 300 in four papers). This may consequently result in a situation where a candidate secures extremely poor marks in one or more subjects which are counter balanced by the marks awarded in other subjects such that the overall marks equal or exceed 150 out of 300. If the First Respondent has in the interest of maintaining and improving the standard of dental education prescribed that a student must secure at least 50 marks in each one of the four papers that would not lower the standard of education in dental education. Ultimately, that is the test that is now enunciated by the Supreme Court in the judgments subsequent to Adhiyaman referred to above.
14. For these reasons, we do not find any merit in the Petition. The Petition is accordingly dismissed. There shall be no order as to costs.