Judgment:
ORDER
R.M.S. Khandeparkar, J.
1. The petition seeks to challenge the Rules framed by the Government of Goa for admission to the Post-Graduate Degree Courses of Goa University at Goa Medical College, Bambolim.
2. Till the year 1997, the admissions to the Post-Graduate Degree and Diploma Courses of the Goa University at Goa Medical College were governed by the Rules which were comprised under Notification No. 13/6/80 - E.H.D. dated 2nd March, 1988 published in the Official Gazette dated 31st March, 1988 and for the sake of brevity, the said Rules are hereinafter referred to as 'the old Rules'. Since 1998, however, the admissions to the Post Graduate Degree Courses of Goa University at Goa Medical College are governed by the Rules called as the Goa (Rules for Admission to the Post-Graduate Degree Courses of the Goa University at the Goa Medical College) Rules, 1998, hereinafter called as 'the new Rules'. It appears that in terms of the old Rules, the order of merit was determined by obtaining sum of the percentage of the aggregate marks and the percentage marks in the subject related to the Degree or the Diploma in which the candidate was seeking for registration; whereas in terms of the new Rules, the order of merit is to be determined by the percentage of the aggregate marks. In short, under the old Rules the merit was determined by addition of aggregate marks and the subject marks whereas under the new Rules, the merit is determined on the basis of the aggregate marks without any emphasis on the subject marks. These and other changes brought about in determination of merit order under the new Rules are sought to be challenged by the petitioners who have, after passing Third Year M.B.B.S. completed their one year internship on or before 20th January, 1999 and are aspiring to secure admission to various Post-Graduate Degree Courses at Goa Medical College.
3. Before considering the challenge to the new Rules, it would be worthwhile to note the exact changes those are being sought to be brought about by the new Rules and how far the provisions in the new Rules are different from those in the old Rules.
4. Under the old Rules, the order of merit was determined in the following manner:-
'3) Order of merit:-- The order of merit shall be determined by computing the marks in the following manner:-
(i) The merit shall be arrived at by obtaining the sum of the percentage of aggregate marks and the percentage of marks in the subject related to the Degree Diploma in which the candidate seeks the registration.
(ii) Aggregate Marks.- The percentage of aggregate marks shall be arrived at by totalling the marks obtained in the Ist, 2nd and 3rd M.B.B.S. examination. (viz. Anatomy, Physiology, Biochemistry, Forensic Medicine, Medicine Survey, Eye and E.N.T., Obstetrics & Gynaecology and Preventive and Social Medicine, and reducing it to a percentage after the following deductions.
(a) 2 1/2 per cent of the maximum marks shall be deducted for every failure from the marks of the subject failed, except in the case of the subject related to the Diploma/ Degree of registration.
(b) 2 1/2 percent of the maximum marks shall also be deducted as above, if the student takes a drop in any subject (does not appear/is absent at the examination) at the scheduled time.
(iii) Subject Marks. This refers to the percentage of marks in the subject related to Degree/ Diploma in which the candidate seeks registration i.e. Medicine, Surgery, Eye and E.N.T., Obstetrics and Gynaecology and Preventive and Social Medicine. The percentage of subject marks shall be arrived at after deducting 5% of the maximum marks for each failure or drop.
Note:- While computing the aggregate marks, however, deduction indicated in 3 (ii) (a) and (b) above, shall not be made in the subject, where 5% deduction has already been made for failure under subject marks at 3 (iii) above.
(iv) If two or more candidates secure the same marks in the merit list as drawn above, the subject marks should decide the merit. In case the subject marks are also the same, the total marks secured by the candidate in the Final M.B.B.S. examination or total marks of IInd M.B.B.S. examination or total marks of Ist M.B.B.S. examination, depending on whether the candidate is seeking registration in a clinical, paraclinical or pre-clinical subject.Note:--- 'Marks obtained in the subject' means the actual number of marks secured in the subjects shown below at the University examination.
Subject of which marks shall be consideredName of Degree/ Diploma
a)MedicineDiploma and Degree in Skin and V.D., Psychiatry, Radio -Diagnosis, T-B. & Chest Diseases and Degree in General Medicine & Paediatrics.
b)SurgeryDiploma and Degree in Anesthesiology and Degree in Surgery Orthopaedic Surgery.c)Eye and E.N.T.Degree in Ophthalmologyd)Obstetrics & GynaecologyDegree in Obstetrics and Gynaecology-e)Preventive and Social MedicineDiploma and Degree in P.S.M.f)PharmacologyDegree in Pharmacology.g)PathologyDegree in Pathology.h)MicrobiologyDegree in Microbiology.i)Forensic MedicineDegree and Diploma in Forensic Medicine.j)AnatomyDegree in Anatomy.k)PhysiologyDegree in Physiologyl)BiochemistryDegree in Biochemistry.
5. Under the new Rules, the change brought about in the matter of determination of order of merit is as under:-
'(3) Order of Merit ---
(i) The order of merit shall be determined by the percentage of aggregate marks.
(ii) Aggregate Marks.---The percentage of aggregate marks shall be arrived at by totalling the marks obtained in the 1st, 2nd and 3rd M.B.B.S Examinations (viz. Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine, Medicine, Surgery, Eye and E.N.T., Obstetrics and Gynaecology, and Preventive and Social Medicine) and reducing it to a percentage after the following deductions:-
(a) 5 percent of marks shall be deducted for every failure from the marks of the subject failed.
(b) 5 percent marks shall also be deducted as above, if the student takes a drop in the subject.
(iii) If two or more candidates secure the same marks in the merit list as drawn above, the subject marks shall decide the merit. In case the subject marks are also the same, the total marks secured by the candidates in the Final M.B.B.S. Examination, or total marks of IInd M.B.B.S. Examination or total marks of the Ist M.B.B.S. Examination, depending on whether the candidate is seeking registration in the clinical, or para-clinical or pre-clinical subjects respectively, shall decide the merit.
(iv) A candidate, who has failed three times in a particular subject, shall not be eligible for registration for the degrees for which the marks of that subject are considered.
(v) A candidate, who has obtained less than 50% aggregate marks as determined above, shall not be eligible for admission to the postgraduate degree courses.
Note:- ' Marks obtained in the Subject' means the actual number of marks secured in the Subjects shown below at the University examination:-
Subject of which marks shall be consideredName of the Degree
12
(a)Medicine- M.D. Medicine - M.D. Paediatrics - M.D.T.B. & Chest Diseases - M.D, Radio- Diagnosis - M.D. Skin & V.D. - M.D. Psychiatry(b)Surgery- M.S. Surgery - M.S. Orthopaedic Surgery - M.S. Anesthesiology(c)Eye and E.N.T.- M.S. Ophthalmology(d)Obstetrics and Gynaecology- M.D. Obstetrics and Gynaecology(e)Preventive and Social Medicine- M.D. Preventive and Social Medicine(f)Pharmacology- M.D. Pharmacology(g)Pathology- M.D. Pathology(h)Microbiology- M.D. Microbiology(i)Forensic Medicine- M.D. Forensic Medicine(j)Anatomy- M.S. Anatomy(k)Physiology- M.D. Physiology(l)Biochemistry- M.D. Biochemistry.
*From the academic year 2000-01, the subject of Radio-Diagnosis will come under the Board of study in Surgery and allied subjects as per the recommendations of the Medical Council of India.'
6. Broadly, therefore, the changes which are brought about in the matter of determination of order of merit under the new Rules are:-
(i) the percentage of marks in the related subject which was taken into consideration along with the percentage of the aggregate marks is no more considered for the purpose of determination of order of merit under the new Rules;
(ii) the percentage of deductions in case of failure in subject as well as in case of drop in subject is increased from 2.5% to 5%;
(iii) in view of non-consideration of the subject marks in addition to the aggregate marks, the provision regarding the deletion of 5% in case of failure or drop in the related subject is done away with;
(iv) failure of the candidate for three times in a particular subject will disentitle the candidate to seek registration at Post-Graduate Course in that subject;
(v) candidates having less than 50% of aggregate marks shall not be entitled for admission to Post-Graduate Courses.
7. While assailing the new Rules, Shri M.S. Sonak, learned Advocate appearing for the petitioners, submitted that in the matter of admission to Post-Graduate Courses, the predictability of the Rules, sufficient advance notice of the change in Rules and the implementation of the changed Rules in phased and non-abrupt manner are all facets of law and breach of any such facet is violative of Article 14 of the Constitution of India. Considering the fact that the new Rules have been brought about in the year 1998 and are made applicable to the students who had joined the M.B.B.S. Course even in the year 1993, there is a clear arbitrariness on the part of the respondents besides being a fact that the petitioners have not been given sufficient advance notice of the change in Rules. The petitioners could not have any reasonable notice of the change in the rules so as to plan theireducational career on the basis of the same. The petitioners had placed their reliance on the old Rules for the purpose of charting their educational course with a view to secure admission to the Post-Graduate Courses in the subject of their choice. However, if the new Rules are followed then the petitioners will not secure admission to the Courses of their choice. Therefore, the doctrine of legitimate expectation is clearly attracted. By superseding the old Rules and replacing the same with the new Rules, the respondents have purported to withdraw the representation earlier held to the petitioners. The petitioners have altered their position to their detriment and the respondents are, therefore, estopped from withdrawing the old Rules. The learned Advocate for the petitioners has sought to rely upon the decision of a Full Bench of this Court in the matter of Govinddas Mannulal Shroff v. State of Maharashtra, reported in 1997(1) All Mah. Reporters 407 in support of his submissions. The submissions on behalf of the petitioners are sought to be countered by Shri H.R. Bharne, the Government Advocate, and Shri S.G. Dessai, Sr. Advocate appearing for respondents Nos. 4 and 5 by submitting that the doctrine of legitimate expectation and promissory estoppel have no place in educational matters and in case of admissions to Post -Graduate Courses, merit is the only criteria to be adopted and in that regard sought to rely upon the judgment of the Full Bench of this Court in the matter of Ashwin Prafulla Pimpalwar v. State of Maharashtra & others, reported in : AIR1992Bom233 . That apart, it is their contention that the new Rules having already been made applicable since 1998, the students of the casual batch were already admitted in September 1998 on the basis of and in accordance with the new Rules.
8. The Full Bench of this Court in Ashwin Prafulla Pimpalwar v. State of Maharashtra & others, (supra) has clearly held that a student when he enters an educational institution he cannot claim a vested right to prepare for and write the succeeding higher examination on the basis of Rules prevalent at the time of his entrance in the Institution. It was clearly observed therein that the students entering educational institutions with the ultimate aim of completing their scholastic career at the peak are expected to strive for academic excellence and accordingly, it cannot be assumed that a student would only look at rules operating at the time when he prepares for qualifying examination and regulating admission to post graduate courses. Every student is expected to do his best throughout his career. Quoting the lines of Longfellow, that ' the heights are reached not by a sudden flight; they are reached by those who toil upwards in the night while their companions slept', the Full Bench has observed that 'In a highly competitive examination there is a neck to neck race even among those who spare no pains or times to achieve the converted goal. Quite often imponderable factors or fortuitous circumstances may affect the fate. Under such circumstances, it would be unrealistic to posit a theory of promissory estoppel based on the elusive concept of the preparation time for the qualifying examination.' After considering various decisions of this Court, the Full Bench has held that the doctrine of promissory estoppel would have no application in relation to the admission to Post-Graduate Courses for higher specialised studies in Medical Colleges run by or under the control of the Government. Likewise, the Full Bench, after considering the doctrine of legitimate expectation, heldthat merely because of a promulgation of a particular rule or order by the Government, a student aspiring for a post-graduate degree in a professional course cannot with grace or legal force contend that he could have a legitimate expectation in the continuity of that advantage or benefit arising from the order which held the field at a particular time despite an overriding or even a reasonable need of change. The Court has further held that 'when viewed from the point of view of the duty of the Government to effect appropriate changes, whether it be in the matter of legislation, pure and simple, or in relation to its executive instructions, if and when circumstances warrant the same, such a restriction would be to make societies stagnant and the Government non-functional' and, therefore, the Full Bench has ruled that 'no citizen can found a claim of legitimate expectation on such a fragile phenomenon or unsubstantial facade.'
9. Perusal of the Full Bench decision in the matter of Govinddas Mannulal Shroff (supra) discloses that it has nowhere diverted from the view taken in Ashwin Prafulla Pimpalwar's case (supra). Indeed, Shri Sonak could not derive any support from the said decision apart from drawing our attention to Para 15 thereof wherein it has been observed that the rules of admission are required to be published at least 6 months in advance so as to give proper notice of the same to the student. In fact, even those observations can be of no assistance to the petitioner's as the same were in a context with the provisions contained in section 65 of the Maharashtra Universities Act, 1994 which requires that the Model Rules for admission should be published in University Gazette or Official Gazette six months in advance for the benefit of the students. Irrespective of such decision on rules to that effect, there can be no doubt that the rules of admission are always required to be published well in advance. In the case in hand, the petitioners can have no occasion to make any grievance of delay in publication of the new Rules. Undisputedly, the new Rules were published in Official Gazette dated 4th June, 1998. The admissions for Post-Graduate Courses as far as they relate to the petitioners have started only from 3rd March, 1999. In other words, the Rules were published nearly 9 months prior to the date of admissions as far as the petitioners are concerned. Being so, the judgment of the Full Bench in the matter of Govinddas Mannulal Shroff (supra) can be of no assistance to the petitioners to advance the theory of legitimate expectation or promissory estoppel. The challenge to the new Rules on the first ground, therefore, is to be rejected.
10. It is next contended by Shri Sonak that the new Rules are illegal, null and void because prior to their enactment there was no consultation with the Goa University or Medical Council of India and the said rules have not been enacted pursuant to any Cabinet decision. In this regard it is the contention of the respondents that there is no need of any prior consultation as such either with the Goa University or the Medical Council of India and the Government is fully empowered to frame the new Rules, in accordance with the guidelines laid down by the Medical Council of India. The new Rules are in no way contrary to or in conflict with any of the guidelines laid down by the Medical Council of India in the matter of admission to the Post-Graduate Degree Courses. In this regard, the respondents have sought to rely upon the decision of the Apex Court in the matter of Ajay Kumar Singh and others v. State of Bihar and others, reported in : [1994]3SCR57 . It is further submitted on behalf of the respondents that the new Rules were duly approved by the Health Minister, who incidentally also belonged to medical profession being a Surgeon and such approval has been granted after considering the report of the expert committee. In that regard, attention was also drawn to the copies of the relevant records from the concerned file which are annexed to the affidavit-in-reply of the Dean of Goa Medical College and placed on record. The approval by the Health Minister was preceded by veting of the proposed Rules by the Dean himself of as well as by the Law Department of Government of Goa.
11. The Apex Court in Ajay Kumar Singh's case (supra), taking a review of the various provisions of Indian Medical Council Act, 1956 has observed that amongst other things, the said Act is concerned with the determination and co-ordination of standards of training in the Medical Institutions. It has been observed by the Apex Court therein that sections 16,17,18 and 19 of the said Act speak of 'the courses of study and examination to be undergone' to obtain the recognised medical qualifications and they do not speak of admission to such courses. Section 19-A certainly empowers the Council to prescribe the minimum standards of deduction required for granting recognised under-graduate medical qualifications. Likewise, section 20 prescribes the standards for post-graduate medical education. In that regard, the Apex Court has clearly held therein that 'so does section 20 empowers the Council to prescribe standards of post-graduate medical education but for the guidance of the Universities only.' The Apex Court has further observed:-
'It is thus clear that the Act does not purport to deal with, regulate or provide for admission to graduate or post-graduate medical courses. Indeed, insofar as post-graduate courses are concerned, the power of the Indian Medical Council to 'prescribe the minimum standards of medical education' is only advisory in nature and not of a binding character.'
12. The Apex Court has further observed in the said decision in the matter of Ajay Kumar Singh (supra) that the Regulations made by the Medical Council in 1971 (revised upto January 1978) speak generally of students for post-graduate training being selected 'strictly on merit judged on the basis of academic record in the under-graduate course' and has held that 'this is more in the nature of advice and not a binding direction.' The Apex Court has further held that the Regulations must be read in consistency with Article 15(4) and if so read it means that the students shall be admitted to postgraduate training strictly on the basis of merit in each of the relevant classes or categories, as the case may be.
13. Shri Sonak did try to refer to an unreported decision of the Division Bench of this Court in the matter of Master Vasudeo alias Amey Subhaschandra Kamat v. State of Goa and others, in Writ Petition No. 210/97 delivered on 6th August, 1997 to which one of us (Khandeparkar, J.,) was a party and drawing our attention to Para 13 thereof the learned Advocate submitted that the Division Bench referring to Ashwin Prafulla Pimpalwar's case (supra), has already held that the changes in the Rules are to be preceded by consultation with the Medical Council. The Division Bench in the said decision had held that 'the Court thought that the change should have been preceded by views expressed by expert bodies like Medical Council, competent authorities like the University, or suggestions and views of Committeeor a Commission appointed in that behalf.' The said observation in the said case discloses that the changes to be brought about in the Rules are to be preceded by the views expressed by the expert bodies like the Medical Council or by a Committee duly appointed for that purpose. In the case in hand, the respondents have placed on record the guidelines issued by the Medical Council of India in the matter of selection of students for the Post-Graduate Degree Courses and which were available to the respondents before framing the new Rules. The said guidelines read thus:-
'A. Selection of postgraduate students :--Students for postgraduate training shall be selected strictly on the basis of their academic merit.
For determining the academic merit, the University/Institution may adopt any one of the following procedure both for degree and diploma courses:
i) On the basis of merit as determined by a competitive test conducted by the University/Group of Universities.
ii) On the basis of merit as determined by a centralised competitive test held at the National Level.
iii) On the basis of their performance at the M.B.B.S. examinations provided they all come from the one University.
iv) Combination of (i) and (iii).
NOTE: If there is more than one University, there shall be combined test by these Universities.
No weightage shall be given for admission to Degree Courses for holding a Diploma, or any other experience. There should be no necessity for the diploma being pre-requisite qualification for admission to postgraduate courses.
There shall be no reservation for admission to postgraduate medical degree/diploma course under any category.'
14. It is the contention of Shri Bharne, the learned Government Advocate, that the new Rules are in tune with the above quoted guidelines issued by the Medical Council of India, Placing reliance upon Clause (iii) of the above quoted guidelines, Shri Bharne submitted that the said guidelines clearly provide that the determination of merit can be on the basis of the performance of the candidates at M.B.B.S. examinations provided that they all come from the same University. Undoubtedly, the new Rules apply to the students of Goa University alone. In our considered opinion, Shri Bharne is justified in submitting that the provisions made regarding the determination of order of merit in the new Rules are certainly in consonance with the guidelines issued by the Medical Council of India. In other words, the advice given by the Medical Council of India in the matter of determination of order of merit of the students has been followed by the respondents while framing the new Rules and the Committee had proposed the changes in the old Rules on the same line and keeping in tune with the advice of the Medical Council of India. Being so, it cannot be said that the new Rules have been framed without the same being preceded by the views of expert bodies like Medical Council or the Committee appointed for the purpose. In fact, the records placed before us disclose that the Rules have been framed in consonance with the guidelines issued by the Medical Council of India in the regard as also after considering the views expressed by the Committee specifically formed for the said purpose, besides being vetted by the Dean of Goa Medical College as well as by the Law Department of the Government of Goa. As rightly submitted by the learned Government Advocate, the Rules were duly approved by the Health Minister who was also the Deputy Chief Minister at the relevant time. In addition, it is also on record that the Health Minister was from the same profession being a Surgeon. The records also disclose that the Committee formed for the purpose of suggesting the changes included the then Dean of Goa Medical College, Professor and Head of Department of Paediatrics, Professor and Head of Department of Medicine, Professor and Head of Orthopaedic Surgery as well as Professor and Head of Department of Anatomy. It was then vetted by In-charge of Academic Section Dr. Maenkar as well as by the Law Department and thereafter the Health Minister had approved the new Rules. In the circumstances, it cannot be said that the Rules framed were not preceded by the views by any expert body in the field and, therefore, there is no substance in the second challenge by the Petitioners to the new Rules.
15. It is then submitted by Shri Sonak that the new Rules are illegal, null and void because the changes introduced thereby are based on no material and the respondents have not even disclosed any indication in that regard to bring about any changes in the criteria for determination of order of merit. He placed reliance on the Full Bench decision of this Court in the matter of Ashwin Prafulla Pimpalwar v. State of Maharashtra & others, (supra) and submitted that the Full Bench has clearly held that the respondents are duty bound to justify the changes brought about in the rules of admission by producing relevant materials on record. He further submitted that though the determination of order of merit can be a matter of policy, nevertheless the Government cannot act arbitrarily in changing the mode of determination of order of merit and the minimum that is expected from the Government is proper exercise of mind and consideration of all the relevant materials while incorporating such changes. These submissions are sought to be countered by the learned Advocates appearing for the respondents, placing reliance upon the records placed before us and submitting that the said records clearly disclose that the changes have been brought about after thorough application of mind and to ensure that candidates with good merit secure admission to the Post-Graduate Courses and thereby results in elimination of candidates having poor merit from obtaining registration for Post-Graduate Courses, and further prohibits the dilution of standards of medical education. That apart, according to the respondents, the Rules are in consonance with the guidelines issued by the Medical Council of India.
16. At this stage, while considering the rival contentions in the matter, it is worthwhile to note the observations of the Apex Court in the matter of Jagadish Saran v. Union of India, reported in : [1980]2SCR831 wherein it was observed thus:-
'At the level of Ph.d., M.D., or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in-the-making is a national loss, the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. The Indian Medical Council has rightly emphasised that playing with merit for pampering local feeling will boomerang. Midgetry, where summitry is the desideratum, is a dangerous art. We may here extract theIndian Medical Council's recommendation, which may not be the last word in social wisdom but is worthy of consideration:
'Students for postgraduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post-graduate studies should be conducted by the universities.' ...
Merit must be the test when choosing the best, according to this rule of equal chance for equal marks, This proposition has greater importance when we reach the higher levels of education like postgraduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce.' ...
'It is difficult to denounce or renounce the merit criterion when the selection is for post-graduate or post-doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. ...
So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is post-graduate or post-doctoral.'
17. While approving the view of its earlier Bench, the Apex Court thereafter in the case of Pradeep Jain v. Union of India, reported in : (1984)IILLJ481SC has observed thus:-
'These passages from the judgment of Krishna Iyer, J., clearly and forcibly express the same view which we have independently reached on our own and indeed that view has been so ably expressed in these passages that we do not think we can usefully add anything to what has already been said there. We may point out that the Indian Medical Council has also emphasized that playing with merit, so far as admissions to post-graduate courses are concerned, for pampering local feeling, will boomerang.'
18. Bearing in mind the above quoted rulings of the Apex Court as well as the observations of the Full Bench of this Court in the matter of Ashwin Prafulla Pimpalwar's case (supra), and considering the materials placed on record by the respondents, it cannot be said that there is no material to show that the Government at highest level had considered the matters in all aspects. Much to the contrary, the minutes of the expert committee, which was constituted to consider the changes to be brought about in the admission rules, disclose that the changes had been proposed to ensure admission of meritorious candidates to the Post-Graduate Courses and to discourage dilution of standards of medical education in the State. The minutes and the draft rules framed on the basis of the proposals of the expert committee were vetted by the Dean of Goa Medical College followed by the Law Department, Government of Goa. The same were further vetted by In-charge of the Academic Section Dr. Maenkar who had clearly expressed his views on the matter to the effect that the changes proposed, which are brought about in the new Rules, would ensure that the candidates with good merit are admitted in the Post-Graduate Courses and such rules are necessary for elimination of candidates with poor merit from securing admission to post Graduate Courses. It is to be noted that the new Rules clearly provide that a candidate of three times failure in a subject cannot get admission to a Post-Graduate Course in the subject in which the candidate had so failed. Besides, the doors of the Post-Graduate Course are completely closed for those candidates who are not able to get 50% of aggregate marks in M.B.B.S. examination. The records further disclose that the Health Minister, after taking into consideration all these materials, had granted the approval to the new Rules. Being so, we do not find in any manner the respondents having failed to produce before us the relevant materials which were considered before implementing the new Rules. The records disclose that the respondents had considered the relevant materials and had borne in mind the recommendations of the Indian Medical Council to the effect that the students for Post-Graduate training should be selected strictly on merit and judged on the basis of order of merit. We do not find any infraction of the ruling of the Full Bench in Ashwin Prafulla Pimpalwar's case (supra) by the respondents while farming the new Rules.
19. At this stage it cannot also be forgotten that the Government has necessary competence and authority to lay down the Rules regulating the admissions to the educational institutions run by it. The prevailing conditions, the requirements in relation to the running of the institutions, the conduct of examinations, the standard to be provided therein and all other related matters and aspects are within the knowledge of the Government. There cannot be any doubt that while framing such Rules the Government has necessarily to bear in mind the guidelines laid down by the expert bodies and has to take into consideration the views expressed by the experts in the field. As already seen above, in the case in hand there is no material before us to say that the Government had ignored the guidelines of the Medical Council of India while framing the new Rules or that the Government did not take into consideration the views of the expert bodies before bringing about the changes in the old Rules. On the contrary, the record does satisfy that the Government had taken all the necessary care and caution before implementing the new Rules. The records do not substantiate in any manner the contention of the petitioners that the changes brought about in relation to determination of order of merit are either arbitrary or as a result of non-application of mind. On the contrary, the records clearly disprove the contention of the petitioners in that regard.
20. It cannot be contended that the Rules once framed can never be altered. On the contrary, the Government which has competence to frame Rules, has necessarily power to amend or alter or repeal or re-issue thesame or to frame totally new Rules. Indeed, the decision of the Full Bench in the matter of Ashwin Prafulla Pimpalwar's case (supra) is clear in this regard, wherein it has been clearly held:-
'In the sphere of higher education in professional courses, a static and stagnant continuity of Rules once formulated would be totally inappropriate and dangerously counter-productive.'
21. A faint attempt was made on behalf of the petitioners to contend that the expert committee's report does not disclose the reasons for arriving at a decision of proposing changes in the old Rules. In that context, reliance was sought to be placed on the judgment of the Apex Court in the matter of Mohinder Singh Gill v. The Chief Election Commissioner, reported in A.I.R. S.C. 851. Moreover, as rightly submitted by Mrs. A.A. Agni, learned Advocate appearing for the Goa University, the decision as regards the change in Rules is not merely with reference to the views expressed by the expert committee. The changes have ultimately been brought about with the decision of the Government in the matter. As already seen above, such a decision has been arrived at after taking into consideration several factors. In that regard, Mrs. Agni has drawn our attention to the later decision of the Apex Court in the matter of Shri Sachidanand Pandey and another v. The State of West Bengal and others, reported in : [1987]2SCR223 . The Apex Court therein has held that:
'The proposition that a decision must be arrived at after taking into account all relevant considerations, eschewing all irrelevant considerations cannot for a moment be doubted. We have already pointed out that relevant considerations were not ignored and, indeed, were taken into account by the Government of West Bengal. It is not one of these cases where the evidence is first gathered and a decision is later arrived at one fine morning and the decision is incorporated in a reasoned order. This is a case where discussions have necessarily to stretch over a long period of time. Several factors have to be independently and separately weighed and considered. This is a case where the decision and the reasons for the decision can only be gathered by looking at the entire course of events and circumstances stretching over the period from the initiation of the proposal to the taking of the final decision.'
Being so, the contention in regard to the absence of reasons is also devoid of substance.
22. The contention regarding the retrospective effect of the new Rules is also devoid of substance and in that regard we can advantageously refer to the decision of the Apex Court in the matter of Punjab University v. Subash Chander and another, reported in : [1984]3SCR822 . Therein the Apex Court was dealing with a similar contention in a challenge to the Regulations of Punjab University relating to M.B.B.S. Course. The respondent Subash Chander therein had joined Daya Nand Medical College, Ludhiana for M.B.B.S. Course in 1965 when the Regulation 25 of the Punjab University was in force. That Regulation required a minimum of 50% of marks to pass in each subject. But in May 1970, a amendment was made by the University to the Regulations. According to Regulation 25 read with Rule 7.1 which was in force when Subash Chander joined the Course in 1965, he would have been eligible for grace marks at 1% of the aggregate marks of 1600 for allthe four subjects, and therefore would have gained 16, and he would have passed in Midwifery subject also. But he was given only 1% of total marks of 400 for Midwifery as per the amended Regulation 25 read with Rule 2.1 of the Punjab University Calendar, 1974, namely four as grace marks and held to have failed in Midwifery as the total of 95 marks which he actually secured and the 4 grace marks in the theory in that subject fell short of 50 per cent by 1 mark. It was his contention that the old Regulation 25 read with old Rule 7.5 which was in force when he joined the Course in 1965 should have been made applicable to him and he should be declared to have passed the final examination in full including Midwifery, otherwise the amendment would be effective retrospectively to the prejudice of the student. Rejecting this contention, the Apex Court held thus:-
''Retrospective' according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc. means 'Operative with regard to past time'. The change brought about by the addition of the exception to Rule 2.1 does not say that it shall be operative with effect from any earlier date. It is obviously prospective. It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subash Chander, respondent 1, who appeared for the final examination in 1974, after he had joined the course earlier in 1965. No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating thereto which were in force at the time of his admission would continue to be applied to him until he finished his whole course.'
The Apex Court while holding so, referred to its earlier decision in the matter of Bishun Narain Mishra v. State of U.P., reported in : (1966)ILLJ45SC wherein it was held thus:-
'The next contention on behalf of the appellant is that the rule is retrospective and that no retrospective rule can be made. As we read the rule we do not find any retrospectivity in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would therefore apply from that date to all Government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that Government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 58 years oh May 25,1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion does not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule for in actual effect no Government servant was retired before the date of the new rule i.e. May 25, 1961 and all of them were continued in service upto December 31, 1961 except thosewho completed the age of 58 years between May 25, 1961 and December 31, 1961 and were therefore to retire on reaching the age of superannuation according to the old rule. We are, therefore, of opinion to that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to the new rule and second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule therefore, cannot be struck down on the ground that it is retrospective in operation.'
23. It was sought to be contended on behalf of the respondents that the petition suffers from laches. The new Rules were published in June, 1998 and the petition was filed in February, 1999. No satisfactory explanation has been given for raising objection to the new Rules at the eleventh hour. Admittedly, the admission process started from 3rd March, 1999. In the view that we are taking, it is not necessary to deal with this contention. Suffice to say that merely because the petitioners have completed the internship on 20th January, 1999, that cannot constitute a ground for approaching this Court challenging the new Rules nearly nine months after their publication. The petitioners were well aware in June last itself that they would be facing the provisions of the new Rules at the time of their admission to the Post-Graduate Courses in March, 1999. Besides, the students of the casual batch had already been admitted to the Post-Graduate Courses by following the new Rules in September last. The objection on behalf of the respondents regarding delay and unsatisfactory explanation in that regard by the petitioners cannot be totally ignored though in the circumstances, the same cannot be the sole ground to dismiss the petition.
24. For the foregoing reasons, we do not find any merit in the challenge by the petitioners to the new Rules and, therefore, the petition fails and is hereby dismissed. The Rule is discharged with no order as to costs.
25. Petition dismissed.