Judgment:
B.P. Dharmadhikari, J.
1. By this Petition, the petitioner-student is seeking relief of admission to MDS Course for the Academic Year 2009-2010 on the basis of the Revised MDS Course Regulations 2007, by either ignoring or striking down the requirement of possessing 60% marks in subject of speciality, imposed by respondent No. 1-State Government. The Petitioner is seeking admission to respondent No. 2-Goa Dental College and Hospital, which is run by the respondent No. 1-State Government.
2. The contention very briefly is that as the eligibility norms are already fixed by the Dental Council of India, the norm of possessing 60% marks in subject of speciality are repugnant or destructive of those norms and hence cannot operate. In view of the grievance, later on, Dental Council of India has been added as respondent No. 3 and as in the meanwhile the process of admission was over, the five students who have secured admission against six seats for Post Graduate Course have also been added as respondent Nos. 4 to 8.
3. We have heard Advocate Shri Sonak for the Petitioner, learned Advocate General with Government Counsel for Respondent Nos. 1 and 2, Asst. Solicitor General Mr. Ferreira, for Respondent No. 3- Dental Council of India and Advocate Shri Shirodkar holding for Advocate Shri Sardessai for Respondent Nos. 4 to 7. Respondent No. 8 has chosen not to appear though she has been served twice in the matter. By consent, Rule returnable forthwith.
4. Advocate Sonak has at the threshold contended that he is assailing the action of respondent Nos. 1 and 2 on these grounds. He contends that the field in so far as educational qualifications is concerned, is already fully occupied in view of the Dental Council of India revised MDS Course Regulations 2007, herein after referred to as 'Regulations' or 'DCI Regulations' and hence there is no scope for exercising any powers under Entry 25 of List III of Schedule VII of Constitution of India. In the alternate and by way of abundant precaution, it is contended that if this Court finds that there is scope for exercise of any such powers by State Government, the impugned qualification as introduced by State Government is derogatory of the qualifications prescribed by Dental Council of India and, in any case, it dilutes said qualification and therefor must be held to be repugnant and constitutionally unsustainable. It is contended that respondent No. 1 cannot in any way dilute or tinker with the qualifications prescribed by Dental Council of India. He also points out that respondent No. 1 has not prepared any statutory instrument in this respect and the qualification of possessing 60% marks in subject of speciality, is introduced by taking recourse to Article 162 of the Constitution of India. He states that such an exercise will stand at much lower pedestal when this Court is required to consider repugnance between the Regulations and the qualifications prescribed by the State Government. He points out that respondent No. 3-Dental Council of India, has come up with an affidavit mentioning that the qualifications prescribed by State Government are additional or further qualifications in consonance with the qualifications prescribed by Dental Council of India and he urges that such affidavit is of no assistance because the repugnance or otherwise is required to be considered by this Court in the light of various Judgments in the matter. He further states that the petitioner made some representations to State Government pointing out the qualifications prescribed by the Regulations 2007 and requesting for deletion of requirement possessing 60% marks in subject of speciality and on 17.04.2009, the concerned competent authority i.e. Minister has actually accepted the request made by the petitioner and has directed its office to carry out necessary corrections. He contends that thus executive instructions are already directed to be amended and because of administrative lethargy, the amendment has not been actually published and brought to notice of everybody. According to him, the DCI Rules i.e. Regulations are more rational because they meet the object of selecting better student for the Post Graduate Course and if the norms as prescribed by State Government are applied, an element of subjectivity is added to these norms which then enables the evaluating authority to victimize any particular candidate. He contends that those norms prescribed by DCI are more transparent and fair and the State Government ought to have acted in terms of those norms only. Lastly, it is contended that the Medical Council of India has also issued similar norms while selecting students for Post Graduate qualifications after obtaining MBBS Degree. He contends that in so far as those students are concerned, respondent No. 1 has not added such requirement of possessing 60% marks in subject of speciality. According to him, the Goa Medical College, which imparts education up to MBBS Degree and thereafter as also respondent No. 2-College are both under one University and managed by respondent No. 1-State Government. He contends that for the purpose of obtaining Post Graduation qualifications, students possessing MBBS Degree or MDS Degree constitute one class and the best student out of them is to be selected. For the purpose of admission, to Post Graduate Courses in Medicine, the State Government has found that the prescription by Medical Council of India is sufficient and serves the goal. He contends that only for the purpose of the students of respondent No. 2-College, the artificial concept of possessing 60% marks in subject of speciality has been added and that norm does not advance the goal sought to be achieved. He has attempted to demonstrate that in fact, there is no nexus in so far as these norms and the object sought to be achieved, is concerned. He contends that there is no intelligible differentia in so far as students of MBBS and BDS are concerned. Accordingly, therefore, the addition of the requirement of possessing 60% marks in subject of speciality for petitioner is violating Article 14 of Constitution of India. He has relied upon various Judgments to substantiate his contentions.
5. Asst. Solicitor General Mr. Ferreira, for respondent No. 3, has contended that respondent No. 3 has filed affidavit before this Court and pointed out that it views the qualifications prescribed by respondent No. 1 as an additional or further qualification which is not repugnant with the qualifications prescribed by Dental Council of India. He, therefor, contends that case Law cited by petitioner in this respect is not relevant at all in this matter.
6. Learned Advocate General with learned Government Counsel has contended that the requirement of possessing 60% marks in subject speciality is in existence since 1998. He further states that though the Regulations are stated to be of the year 2007, the relevant provision prescribing the norms for eligibility has not undergone any change in 2007 and those norms are also in existence since 1998. It is therefor urged that petitioner took admission to various courses with knowledge of the additional requirement imposed by State Government and has accordingly prosecuted his studies. It is further stated that the petitioner also participated in the selection process and did not approach this Court at the earliest. In these circumstances, learned Advocate General submitted that the Petition suffers from laches and deserves to be dismissed.
7. Learned Advocate General has also relied upon various Judgments including some cited by Advocate Sonak, to advance his arguments that respondent No. 1-State Government can exercise its authority under Entry 25 of List III and has accordingly in exercise of those powers prescribed the requirement of possessing 60% marks in subject speciality. It is contended that those norms are not in any way inconsistent with or repugnant with the eligibility norms prescribed by Dental Council of India in its 2007 Regulations. It is contended that those norms advance the purpose of selecting better student and are in consonance with the 2007 Regulations. It is pointed out that respondent No. 1- State Government has stipulated higher standards and those higher standards do not in any way militate qualification prescribed by Dental Council of India. The learned Counsel has contended that the decisions by concerned Minister on 17.02.2009, is still being examined by respondent No. 1-State Government and a communication in that respect was also sent to the Dental Council of India and response from Dental Council of India is still awaited. He contends that till then the executive instructions issued in exercise of powers under Article 162 are valid and have been used to regulate the admission of the petitioner. It is further stated that the case of victimization or the reduction of the role of subjective satisfaction or element in the process of evaluation of performance of students is not properly pleaded and is not made out at all. It is urged that there could not have been any challenge to said stipulations had said stipulation come from respondent No. 3-Dental Council of India itself. Similarly, it is urged that the identity between students prosecuting MBBS and BDS Courses is pleaded only after taking into account the alleged goal of selecting best students for Post Graduate Courses. Learned Advocate General states that students prosecuting MBBS and BDS Courses represent two separate distinct classes by themselves and the Courses which they prosecute after their graduation, are also distinct. Thus, according to him, two distinct classes or students which are regulated by different standards, different enactments or different authorities cannot be clubbed together for such purpose. He has invited our attention to certain reported cases, to contend that the provisions in two enactments cannot be read together in an effort to work out the violation of Article 14 of the Constitution of India. He contends that Article 14 also stands violated when unequal are treated equally. It is therefore argued by learned Advocate General that there is no merit in the Petition and the Petition filed therefore needs to be dismissed.
8. Learned Advocate General has also contended that in case this Court is inclined to interfere in the matter, the admission process which has already been completed cannot be disturbed and the Judgments/findings of this Court can be made effective only from next year. Our attention has also been invited to certain Judgments for this purpose.
9. Advocate Sonak in his brief reply has commented upon the Judgments cited by learned Advocate General to point out in what circumstances, the Hon'ble Apex Court has concluded that its Judgment would have prescriptive application. It is further contended by him that the petitioner has approached State Government well in time and he points out that the notice inviting applications for admission was published for the first time on Notice Board on 23.03.2009. He states that the representation made by petitioner was favourably considered by competent authority i.e. Minister on 17.02.2009 itself and, therefore, it was not necessary for the petitioner to knock doors of this Court. He contends that the petitioner can not be charged with fault of not approaching this Court earlier. He, therefore, contends that the submission that the petitioner has approached this Court belatedly is without any merits.
10. The documents produced on record before us clearly show that on 17.02.2009, the Minister for Health has after taking note of the discrepancy in the matter, remarked that the requirements of scoring 60% marks in subject speciality should be scrapped immediately. The petitioner has pointed out that the notice on Notice Board of respondent No. 2-College inviting applications for admission of Post Graduate Courses was published for the first time on 23.03.2009. During arguments, it was stated before us that paper publication in this respect was sometime in the month of April 2009. The Petition has been filed before this Court on 01.04.2009 and this Court has issued notice on next day i.e. 02.04.2009 itself. It is, therefore, obvious that in the wake of note dated 17.02.2009 mentioned above, petitioner had no cause to move this Court atleast till 23.03.2009. The Petition has been filed within eight days thereafter and hence the objections of learned Advocate General that Petition suffers from laches cannot be sustained in this background. The other contention that the petitioner was always aware of the norm prescribed by the State Government and he prosecuted his Courses accordingly is being considered at proper place in this Judgment.
11. The contentions about introduction of subjective element in the process because of norm prescribed by respondent No. 1-State Government now needs to be looked into. The Judgment of the Hon'ble Apex Court reported at : AIR2007SC2264 (Maharashtra University of Health v. Paryani Mukesh Jawaharlal and Ors.), has been relied upon by the petitioner in support of this contention. Perusal of said Judgment reveals that in paragraph 9, the Hon'ble Apex Court has only reproduced the arguments of the University that as internal assessment is done by faculty of Medical College where the candidates are students, an element of subjectivity is likely to creep in and therefore the restriction on weightage for internal assessment to 20% of the total marks under MCI Regulations was valid. However, apart from mentioning this argument, there is no further discussion in this respect by Hon'ble Apex Court and perusal of Paragraph 21 of the Judgment shows that this aspect was not gone into in the matter. The Hon'ble Apex Court has concluded that the facts before it demonstrated that internal assessment marks were not intended to be clubbed with marks of University examination (externals) to ascertain whether a student has passed in theory including orals and practicals. The argument advanced is also hypothetical because it presumes that internal examiner may unnecessarily further the interest of another student or then may cause prejudice to some other student to affect his future prospects. However, such possibility by itself cannot be a ground for challenging the criterion of fixing 60% marks in subject speciality. It is to be noted that there has been a debate about grant of marks itself while evaluating the performance of the students and some of the experts have also expressed that instead of marks, grades should be given. The marks, therefore, obtained by the petitioner also cannot be presumed to be free from the alleged subjectivity. Looking to the pleadings in the Petition, we find ourselves unable to probe into more details in this respect.
12. The other objection raised is in relation to violation of 'Article 14'. The Judgment of Hon'ble Apex Court reported at : [1989]1SCR919 (Municipal Corporation of Greater Bombay and Ors. v. Thukral Anjali Deokumar and Ors.), has been relied upon for this purpose. Perusal of paragraph 17, 18 and 19 on which the learned Counsel for the petitioner has placed strong reliance show that the question of granting preference to students for admission to Post Graduate course was under consideration and preference was being given to students of same institute on the ground that they had cleared the graduation examination from that institution only. In this background, Hon'ble Apex Court has stated that Article 14 permits classifications when there is an intelligible differentia which distinguishes persons grouped together from those who are left out of that group and there is rational nexus to the object sought to be achieved by such classification. In paragraph 18, the Hon'ble Apex Court has given the illustrations of arbitrariness which crept into the process due to such preference and all this has been on the background of the fact that all students have taken a common university examination. Hon'ble Apex Court, therefore, in paragraph 18 observes that when the University is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post-graduate degree course of the same university, except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions. In paragraph 19, Hon'ble Apex Court, has found that preference to any student on any ground other than merit will not stand the test of Article 14 of the Constitution.
13. : [1989]1SCR689 (Deepak Sibal v. Panjab University and Anr.), is the other Judgment of Hon'ble Apex Court relied upon for the very same purpose. There, after mentioning the test for determining breach of Article 14 in Para 9, the Hon'ble Apex Court has considered the object of starting evening classes for grant of Law Degree. In paragraph 10 it was noticed that the said object was to provide admission to bonafide employees who could not attend the morning classes on account of their employment. In view of this object, Hon'ble Apex Court found that restricting admission to evening classes only to regular employees of government/semi government institutions was not valid. In Paragraph 12, the reasons given by respondents for restricting such admission are also considered and in paragraph 13, it has been noticed that by prescribing such restriction, the respondents deviated from their object of starting evening classes. Hon'ble Apex Court found it difficult to hold that Government employees and private employees stood on a different footing in so far as question of admission to LLB Degree Course was concerned. Hon'ble Apex Court has stated that the test was whether employees of private establishment were equally in a disadvantageous position like the employees in government/semi government institutions and after holding in favour of private employees, Hon'ble Apex Court concluded that excluding employees of private establishment did not satisfy the test of intelligible differentia.
14. Thus, both the Judgments of Hon'ble Apex Court clearly show the availability of homogeneous class to which different standards were sought to be applied and thus the object to be achieved was getting defeated. The existence of such homogeneous class in the present case has not been demonstrated. The students prosecuting MBBS Courses and BDS Courses cannot be equated together and have always been treated differently. The difference is right from the stage of admission to respective Courses and the syllabus as also examining bodies are different. We find that here an attempt is being made to club two inherently different classes together by pointing out the alleged common object. The object of MCI and DCI is to select best possible student for prosecuting Post Graduate Courses and they have done it by prescribing the norms which they found best to suit the purpose. Merely because object is common, the two heterogeneous classes cannot be clubbed together and arguments of violation of Article 14 cannot be advanced.
15. Learned Advocate General has invited our attention to Judgment of the Hon'ble Apex Court reported at : AIR2002SC1533 (Ashutosh Gupta v. State of Rajasthan and Ors.), particularly Paragraphs 5 and 6 to point out that the basic requirement of having appropriate pleadings and averments which must be specific, clear and fully unambiguous in the substantive petition are not satisfied. We find that the petitioner has alleged violation of Article 14 only by pointing out what according to him is common object and then different treatment to students of MBBS and BDS for that purpose. The pleadings on record are, therefore, sufficient to support the case sought to be made out. The question whether such case is viable or has been made out or not is a different issue and the sufficiency of pleadings for that purpose is not the relevant issue. In paragraph 6, the Hon'ble Apex Court has held that if a law has to be struck down as violative of Article 14 the inequality must arise under the same piece of legislation or under the same set of laws which have to be treated together as one enactment. Inequality resulting from two different enactments made by two different authorities in relation to the same subject will not be liable to attack of Article 14. Here it is not in dispute that respondent No. 3-Dental Council of India is a distinct authority functioning under the provisions of Dentist Act 1948 while the Medical Council of India is a separate authority functioning under an all together different enactment under the name Medical Council of India Act 1956. The finding that students prosecuting these Courses do not form a class has already been given above.
16. In : [2002]2SCR902 (Ombalika Das and Anr. v. Hulisa Shaw), the Hon'ble Apex Court has stated that classification for the purpose of legislation cannot be done with mathematical precision and the legislature enjoys considerable latitude while exercising its wisdom taking into consideration myriad circumstances, for said purpose. However, we do not find any necessity to consider this Judgment relied upon by learned Advocate General, in view of our findings that the students cannot not be treated as constituting one class and hence there is no question of holding that by prescribing the norm of possessing 60% marks in subject speciality only for Dental College graduate students for securing admission to Post Graduate Course, the respondent No. 1-State Government has violated Article 14 of Constitution of India.
17. Before touching the issue on merits, as after hearing Advocate Sonak and learned Advocate General, we found that the only debate between the parties was whether the stipulation of obtaining 60% marks in subject speciality was an additional or higher standard prescribed in consonance with the norms of Dental Council of India or then it is repugnant to those norms, is the main issue. Both learned Counsel have cited various Judgments in support of their contentions. In view of this, we find it unnecessary to refer to all these Judgments, but for the purpose of record, we are mentioning the Judgments relied upon by them as under:
Petitioner has relied upon:
1. : AIR2004SC1943 (Bharati Vidyapeeth and Ors. v. State of Maharashtra and Anr.)
2. : AIR1963SC703 (Gujarat University and Anr. v. Shri Krishna Ranganath Mudhokar)
3. : (1995)4SCC104 (State of Tamil Nadu and Anr. v. Adhiyaman Educational & Research Institute and Ors.)
4. : AIR1959SC648 (Deep Chand v. State of U.P.)
5. : [1990]1SCR614 (Vijay Kumar Sharma v. State of Karnataka)
6. : AIR1999SC2894 (Dr. Preeti Srivastava v. State of M.P.)
18. In addition to this, Advocate Sonak has also relied upon Judgment reported at : [1975]3SCR839 (Ramchandra Keshav Adke and Ors. v. Govind Joti Chavare and Ors.), to urge that when power is to be exercised by any authority, it is to be exercised in the manner prescribed in the statute or else it cannot be exercised at all. He has also relied upon the Judgment reported at : 1993(66)ELT13(SC) (Bengal Iron Corporation and Anr. v. Commercial Tax Officer and Anr.), to point out the relevance of stand taken by Dental College of India in its letter and affidavit produced before this Court.
19. Learned Advocate General has relied upon the Judgment reported at : (1995)4SCC104 (State of Tamil Nadu and Anr. v. Adhiyaman Educational & Research Institute and Ors.); : (2006)9SCC1 (State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors.); : AIR1999SC2894 (Dr. Preeti Srivastava v. State of M.P.) and : AIR2004SC1861 (State of T.N. and Anr. v. S. v. Bratheep (Minor) and Ors.), to urge that the power to prescribe additional educational qualifications in addition to the qualifications prescribed by Dental Council of India is available to State Government in view of Entry 25 of List III.
20. Perusal of Judgment of Hon'ble Apex Court in Bharati Vidyapeeth and Ors. v. State of Maharashtra and anr. (supra), reveals that though the question there was in relation to powers of State Government over deemed Universities in the wake of UGC Act, the Hon'ble Apex Court, has in Paragraph 11, considered the meaning of word 'coordination' as appearing in Entry 66 of List I to conclude that it means harmonization with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It has been interpreted to include power to do all things, which are necessary to prevent what would make 'coordination' either impossible or difficult. In Paragraph 12, the earlier Judgment of its constitutional bench in the case reported at Dr. Preeti Srivastava v. State of M.P. (supra), has been considered to note that norms for admission had connection with standard of education and in Paragraph 16, Hon'ble Apex Court has stated settled position in law that within the concepts of coordination and determination of standards in institutions for higher education or research and scientific technical institutions, the entire gamut of admission is covered. The Hon'ble Apex Court has further observed that any aspect of admission of students in the deemed university would fall within Entry 66 and, therefor, it necessarily stood excluded as has been held in its still earlier Judgment reported at : AIR1963SC703 (Gujarat University and Anr. v. Shri Krishna Ranganath Mudhokar). The relevant paragraph, thereof has actually been reproduced by Hon'ble Apex Court. In fact, before this Court, none of the respondents have contended that the norms for admission is not the subject covered by Entry 66 of List I.
21. In the same Judgment, in Paragraph 12, the Hon'ble Apex Court has re-produced Paragraph 36 of the Judgment in the case of Dr. Preeti Srivastava v. State of M.P. (supra), to show that it would not be correct that rules for admission are covered only by Entry 25 of List III and 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. In this background, in Paragraph 18, Hon'ble Apex Court has observed as under:
18. Under Section 3 of the Act, deemed university status will be given to those institutions that for historical reasons or for any other circumstances are not universities and yet are doing work of a high standard in specialized academic field compared to a university and that granting of a university status would enable them to further contribute to the course of higher education which would mutually enrich the institution and the university system. Guidelines for considering proposals for declaring an institution as deemed to be university were also issued by UGC. Under the said guidelines aspects relating to admission were specifically entrusted with UGC and admission could be made only through a common entrance test on all-India basis. Such an exercise was intended to maintain a uniform standard and level of excellence. As we have pointed out, admission plays a crucial role in maintaining the high quality of education. And for the proper maintenance of academic excellence, as intended by the UGC Act, admission to deemed university have to be made under the control of UGC. Thus further goes to show that admission procedure to a deemed to be university is fully occupied by Entry 66 of List I and the State cannot exercise any powers over admission procedure.
22. Thus, these observations clearly show that Hon'ble Apex Court noticed that admissions in deemed University was fully occupied by Entry 66 of List I and, therefor, State could not have exercised any powers over admission procedure. Our attention has also been invited to Paragraph 23, wherein Hon'ble Apex Court has considered power of UGC to frame Regulations under Section 26 of UGC Act. Perusal of Section 26 of UGC Act shows that it is worded on same lines as that of Section 20(ii)(g) of Dentist Act.
23. State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors. (supra), relied upon by the petitioner, is sought to be distinguished by learned Advocate General by pointing out that it does not deal with the issue of admission at all. The facts as mentioned in Paragraph 2 of the Judgment show that the validity of policy decision of State of Maharashtra not to grant No Objection Certification to any institution for starting new B.Ed. College for the academic year 2005-2006 was being considered there. The Division Bench of this High Court allowed the Petition filed by Institutions by setting aside the Order passed by State Government and directed it as also Maharashtra University to take appropriate consequential actions in accordance with law in the light of the decision taken by National Council for Teacher Education, Bhopal. A perusal of Paragraphs 20 and 21 of this Judgment show the rival contentions raised before Hon'ble Apex Court and the question of primacy of NCTE in the process squarely fell for consideration in that matter. Hon'ble Apex Court has considered its earlier Judgment reported at State of Tamil Nadu and Anr. v. Adhiyaman Educational & Research Institute and Ors. (supra) to note that subject of technical education rested with Parliament as it was covered by Entry 66 of List 1 of Schedule 7 and it was not covered by List 2 of List 3. In Paragraph 52, Hon'ble Apex Court has noticed that there the Court held that after coming into operation of the Central Act, the operation of the University Act would become unenforceable in case of technical colleges and those provisions regarding affiliation of technical colleges and grant of continuation of such affiliations by the University would remain operative but the conditions prescribed for grant or continuance of affiliation by University must be in conformity with the norms and guidelines prescribed by the Council under the Central Act. In Paragraph 53, the arguments put forward in said matter on behalf of State Government, that it would be open for Council to lay down minimum standards and requirements are mentioned and then in Paragraph 54, the fact that those arguments were negatived by placing reliance upon Judgment in the case reported at : AIR1939Cal628 (G.P. Stewart v. Brojendra Kishore Roy Chaudhury) is also mentioned by Hon'ble Apex Court. In Paragraph 61, the Hon'ble Apex Court has then made reference to Paragraph 31 of its earlier Judgment to record a finding that a complete and exhaustive provision reserving the entire field for establishing of a new medical college in the country for Parliament existed and no further scope was left for the operation of the State legislation in the said field which was fully covered by the law made by Parliament. In Paragraph 62, the Hon'ble Apex Court has concluded as under:
From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and the State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as the State Legislatures and appropriate Act can be made by the State Legislature subject to limitations and restrictions under the Constitution.
24. Thus, having observed that when there is concurrent power with Parliament as also State Legislature, appropriate enactment can be made by State Legislature subject to limitation and restrictions under Article 254(1) of the Constitution of India, in Paragraph 63, the Hon'ble Apex Court has applied said law to the facts before it and noted that Parliament enacted 1993 Act i.e. National Council for Teachers Education Act 1993 and, therefor, the field was fully and completely occupied by said Act. Hon'ble Apex Court, therefor, concluded that it was not open to State Legislature to encroach upon said field. Parliament alone could have exercised the power. Thus, the view taken by this High Court was upheld. This consideration by Hon'ble Apex Court clearly shows that though the issue of admission as such was not being considered by Hon'ble Apex Court, the effect of law made by Parliament by exercising its powers under Entry 66 of List I, has been considered in the light of concurrent power of State Legislature in view of Entry 25 of List III and the primacy given to Central Legislation has been pointed out. The Judgment, therefor, cannot be stated to be not applicable merely because it does not consider the aspect of admission.
25. We, here, wish to state that learned Counsel for the petitioner has also relied upon the Judgment in the case of State of Tamil Nadu and Anr. v. Adhiyaman Educational & Research Institute and Ors. (supra) and this later Judgment of Hon'ble Apex Court has relied upon said Judgment at length in this matter. It is, therefor, not necessary for this Court to consider again this Judgment of State of Tamil Nadu and Anr. v. Adhiyaman Educational & Research Institute and Ors. (supra).
26. Though reference in detail in this Judgment of State of Tamil Nadu and Anr. v. Adhiyaman Educational & Research Institute and Ors. (supra) is not necessary, we have to deal with the contentions of learned Advocate General that said Judgment does not again deal with the issue of admission but considers the aspect only of affiliation and closure of a College. Though facts as disclosed in Paragraph 1 to 6 of this Judgment show that Hon'ble Apex Court was considering the aspect of closure or affiliation only, the issue involved has been culled out by Hon'ble Apex Court in Paragraph 8 and it is stated that the question involved was larger one namely conflict between Central Act on one hand and the Tamil Nadu Private Colleges (Regulation) Act, 1976, Rules made thereunder as also Madras University Act, 1923, and statutes and ordinances made thereunder on the other hand. It is, therefor, again obvious that the Hon'ble Apex Court was required to consider the question of the primacy of powers of Parliament in the light of Entry 66 of List I. We also note that in Paragraph 22 of this Judgment, Hon'ble Apex Court found that All India Council for Technical Education was established for coordination and development of the technical education and it was required to regulate and ensure appropriate norms and standards in technical educational schemes. It has also been noticed that those norms and standards had to be reasonable and ideal and at the same time adaptable, attainable and maintainable by institutions throughout the country. Hon'ble Apex Court noticed that country consists of regions and population which are at different levels of progress and development and then different levels of backwardness and these aspects need to be noticed while fixing the norms and standards prescribed. It was also noticed that Council had representations not only of the State but also of the State Universities and thus they had their say in the matter of laying down the norms and standards.
27. In paragraph 26 and 27, the provisions of State Act have been considered and it is noticed that if State Act was made applicable to technical institutions it overlapped and came in the conflict with Central Acts in various areas. The contention that these provisions can be said to have been enacted under Entry 25 of List III is also considered and it has been observed that provisions of said Act which impinge upon the provisions of the Central Act are void and unenforceable to the extent of said conflict.
28. In Paragraph 38, the Hon'ble Apex Court has considered its earlier Judgment reported at 1996 Supp S.C.C. 543 (Ambesh Kumar (Dr) v. Principal, L.L.R.M. Medical College), to note that act of State Government in prescribing minimum marks obtained in MBBS for admission to Post Graduate courses, had effect of furthering the standard of institution and as no such minimum marks or requirement existed in Regulations under the Indian Medical Council Act, it could not be said that the State Government has encroached upon the standard prescribed by the said Regulations.
29. This brings us to the consideration of constitutional bench Judgment of Hon'ble Apex Court in the case of Dr. Preeti Srivastava v. State of M.P. (supra). By relying on paragraph 2 of said Judgment, learned Counsel for the Petitioner has contended that the only question gone into by constitutional bench there is whether State can prescribe different admission criteria for special category candidates seeking admission under reserved category. Learned Advocate General has contended that the Hon'ble Apex Court has considered two questions i.e. whether State Government can prescribe different qualifications and whether such qualifications can be prescribed for reserved category. The distinction sought to be made is not very relevant according to us in view of the actual consideration of the issue by Hon'ble Apex Court before it. The Hon'ble Apex Court has proceeded to consider the question as to who should decide the qualifying marks and as to whether it will affect the standard of education. Paragraph 34 shows that the contention raised by State Governments before Hon'ble Apex Court was that it was for the State to decide the qualifying marks for reserved category candidates at Post Graduate level and it was matter of State policy. In Paragraph 35, the Hon'ble Apex Court has considered the provisions of Article 246 and relevant entries in VIIth Schedule and noted that Entry 11 of List II was deleted by 42nd Constitutional Amendment Act and Entry 25 of List III was amended but then the said powers of State legislature were subject to provisions of Entry 63, 64, 65 and 66 of List I. It is noted that Union as also State therefor has the power to legislate on education including medical education and it is subject to Entry 66 of List I. State Legislature, therefor, has the right to control admission including Medical education so far as the field is not occupied by legislature and under disguise of controlling education State cannot impinge upon standards in institutions for higher education as it is exclusively within the purview of Union Government. At the end of paragraph, Hon'ble Apex Court has stated that if Union legislates on admission criteria, State will not be able to legislate in this field, except as provided in Article 254.
30. In paragraph 36, it has been held that there can be rules for admission by State if the same are not inconsistent with or do not affect adversely the standard of education prescribed by Union in exercise of powers under Entry 66 of List I. Hon'ble Apex Court has stated that the State may, therefor, for admission to Post Graduate Courses lay down qualifications in addition to those prescribed under Entry 66 of List I but then this would have to be consistent with promoting higher standards for admission to the higher educational courses and any lowering of norms and adversely affecting the standard of education is not possible. Learned Advocate General has relied upon discussion as contained at Paragraphs 29 to 46 of this Judgment but then said discussion again shows that the admissions can be made on a basis which is consistent with standards laid down by statute or regulations framed by Central Government and additional norms can be laid down by College or State. Minimum standards as laid down by Central statute has to be complied by the State while making admission and in addition to it, it may lay down regulations/norms in exercise of its power under Entry 23 of List III and in a manner which does not dilute the criteria so laid down. The result of discussion in other paragraphs is not different. Discussion in paragraph 54 and 55 clearly show that the Hon'ble Apex Court did not agree with interpretation put on Section 20 of Indian Medical Council Act, 1956, in its earlier Judgment reported at : [1994]3SCR57 (Ajay Kumar Singh v. State of Bihar), and concluded by observing that scheme of India Medical Council Act, 1956, does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council Act, 1956. Paragraphs 56 and 57 show that Hon'ble Apex Court held that Regulations of Medical Council of India have statutory force and are mandatory. It has been observed that Medical Council of India has been set up as an expert body to control and supervise the minimum standards of medical education and to regulate their observance. Hon'ble Apex Court has concluded that thus under the Medical Council Act, an overall vigilance by the Medical Council to prevent sub-standard entrance qualifications for medical courses are inherent. Hon'ble Apex Court has also clarified that its observations on these lines apply to Post Graduate medical courses also.
31. This Judgment of Hon'ble Apex Court is on Regulations which are issued by Medical Council of India. Similarly, the Judgment of Hon'ble Apex Court in case of Bharati Vidyapeeth and Ors. v. State of Maharashtra and anr. (supra), is upon Section 26(1)(a) of UGC Act. WE have already pointed out that said Section is identical with Section 20(2) of the Dentist Act, 1948. The Regulations of Medical Council of India considered by Hon'ble Apex Court in case of Dr. Preeti Srivastava v. State of M.P. (supra), are identical with the Regulations of Dental Council of India. In view of this position, it is not necessary for us to consider various other Judgments pointed out by respective Counsel. Field in this respect is, therefore, required to be held as fully occupied.
32. The learned Advocate General has however attempted to demonstrate that the qualifications stipulated by respondent No. 1 are additional or further qualifications in consonance with the qualifications prescribed by Dental Council of India. Advocate Sonak has contended that as filed is fully occupied, State has no role to play and Entry 25 of List III is not relevant at all. In present facts, we find it not necessary to embark upon this inquiry. The qualifications prescribed by Dental Council of India are as under:
Selection of Postgraduate Students:
(1) Students for postgraduate dental courses (MDS) shall be selected strictly on the basis of their academic merit.
(2) For determining the academic merit, the university/institution may adopt any one of the following procedures both for P.G. Diploma and MDS Degree courses:
(i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of universities in the same State;
Or
(ii) On the basis of merit as determined by the centralised competitive test held at the national level; or
(iii) On the basis of the individual cumulative performance at the first, second, third and Final B.D.S. Examinations, if such examinations have been passed from the same university; or
(iv) Combination of (i) and (iii);
Provided that wherever entrance test for Postgraduate admissions is held by a State Government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate Dental courses shall be 50% for general category candidates and 40% for the candidates belonging to Scheduled Castes and Scheduled Tribes.
Provided further that in non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty percent, by the management of the institution on the basis of merit.
33. It is admitted position before us that respondent Nos. 1 and 2 have to follow the provisions of Clause (2)(iii) and, therefor, individual cumulative performance at 1st, 2nd and 3rd examination is the relevant criterion. The qualification stated to be higher qualification as prescribed by respondent No. 1, is contained in Goa (Rules for admission to Post Graduate Degree Courses of the Goa University at the Goa Dental College and Hospital) Rules 1998 Clause (IV) thereof deals with Eligibility preference and order of merit. Sub-clause (3) considers the aspect of determination of Order of merit and as per its Sub-clause (I) aggregate marks i.e. marks obtained in subject of 1st, 2nd and 3rd of final BDS Semester I and II of University Examination are relevant. Now, the percentage of marks for the purpose of admission process is to be worked out as stipulated therein but those details are not relevant for our purpose. Sub-clause (iv) of these Goa Rules in so far as the same are relevant, read as under:
(iv) for selection, the minimum aggregate marks is the grand total of 1st final B.D.S. and the subject of speciality should be as follows, after deduction of failure, if any, for making a candidate eligible to apply for the Master of Dental Surgery Course.
In General Category - Grand total of 1st to Final year B.D.S. - 55% and subject of speciality 60%.
In OBC - Grand total of 1st to Final year B.D.S. - 50% and subject of speciality - 55%.
SC/ST - Grand total of 1st to Final Year B.D.S. - 50% and subject of speciality - 50%.
34. Thus, the addition of words 'and the subject of speciality' in Sub-clause (iv) and words 'and subject of speciality 60%' in portion below it for general category are the bone of contentions between the parties. Petitioner contends that this is repugnant to the norms prescribed by Dental Council of India and learned Advocate General as also learned ASGI for respondent No. 3 contend that it is nothing but a higher/further qualification in consonance with the Dental Council of India prescription.
35. Before considering the relevant law pointed out to us by parties to examine the aspect of repugnancy and inconsistency, it is necessary to consider the contention of petitioner that there is no official stand of Dental College of India in this respect on record of Writ Petition. Our attention has been invited to the counter affidavit of respondent No. 3 and the communication dated 23.04.2009 addressed by Secretary, Dental Council of India to the learned ASGI. The said communication has been placed on record at the time of arguments. The signatory to this letter i.e. Dr. T.N. Avasthe, Secretary, has sworn the affidavit on behalf of respondent No. 3. We find that in the affidavit, there is no reference to any meeting of Dental Council of India or any resolution passed therein either after the notice was served upon Dental Council of India or at any point of time earlier, stating that the qualification of possessing 60% marks by general category candidate in subject speciality has been recognized as higher qualification by it. The affidavit apart from reproducing the procedure for selection as per MDS Course Regulations, 2007, (supra), in paragraph 7 only re-produced the position in law that it is open to concerned State Government to prescribe higher than minimum standards prescribed by Dental Council of India Regulations. As pointed out by learned Advocate General and ASGI, the communication dated 23.04.2009 states that Secretary was directed to send the said communication. However, who gave that direction is not apparent. The communication states again the legal position. Judgment of Hon'ble Apex Court reported at Bengal Iron Corporation and Anr. v. Commercial Tax Officer and Ors., (supra), particularly paragraph 18 thereof, considers the issue of clarifications/circulars issued by the Central Government and/or State Government in such circumstances. It has been held that such circulars or clarifications merely represent the understanding of these authorities about the statutory positions and the same are binding upon Courts. Same view is taken by Division Bench of this Court in Arvind Laxmanrao v. State of Maharashtra : 1988(1)BomCR280 , wherein the Division Bench has observed that interpretation of the Rule before it was not dependent upon what Government said about it and the Court has to find out what it really meant. It is, therefore, obvious that stand of respondent No. 3-Dental Council of India, if any, in this respect is not determinative and this Court therefor has to attempt to find out what is the legal position.
36. The provisions of Dental Council of India Regulation, 2007, clearly show that admission has to be on the basis of individual cumulative performance. The State Government, has by its 1998 Rules, added one more norm to it and said norm requires the applicant-student to possess 60% marks in subject speciality. In facts before us, it is not in dispute that in merit list of students prepared on the basis of Dental Council of India Regulations, i.e. on the basis of total of marks scored in all examination, name of the petitioner-student appears at serial No. 8 and he has scored 61.63% marks. It appears that he has scored 60% or more marks in subject or Orthodontics and Prosthodontics and, therefore, he is found eligible for those subjects in so far as his admission to Post Graduate courses is concerned. Petitioner has no grievance in relation to these two subjects because students admitted for those subjects have scored more than 61.63% marks and, therefor, are above him in said merit list. Grievance expressed is in relation to respondent No. 8, who is at serial No. 12 in that list. She has 58.29% marks to her credit and, therefor, when test of Dental Council of India is applied as her individual cumulative performance of all relevant years is lower than that of petitioner, according to him, she could not have been admitted. However, as she has scored 60% or more marks in subject of Orthodontics and Conservative Dentistry, she has been admitted as Post Graduate student in Conservative Dentistry. The fact, therefor, is that respondent No. 8, who stands below the petitioner in the merit list has been selected for admission only because she fulfills the other norm prescribed by respondent No. 1 namely of possessing 60% marks in subject speciality. It is therefor apparent that possession of marks to the extent of 60% in subject speciality added as a norm by respondent No. 1, renders petitioner ineligible even from competing for admission to Conservative Dentistry. Thus, when Dental Council of India Regulations permit him not only to compete for said course but declare him more meritorious and entitled to admission, he is not being considered as even eligible because of the alleged higher norm prescribed by State Government. It is therefore apparent that an additional mandatory requirement not contemplated by Dental Council of India Regulations have been prescribed by State Government and with the result, the entitlement of petitioner to compete in terms of Regulations has been removed and he is rendered unfit for said admission.
37. In Deep Chand v. State of U.P. (supra), the Hon'ble Apex Court has laid down the test to find out whether the provisions are repugnant or inconsistent with each other. These tests, as laid down in paragraph 29, are as under:
29. Nicholas in his Australian Constitution, 2nd Edition, page 303, refers to three tests of inconsistency or repugnancy:
(1) There may be inconsistency in the actual terms of the competing statutes;
(2) Though there may be no direction conflict, a State Law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code; and
(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter.
This Court in Tika Ramji v. State of Uttar Pradesh : [1956]1SCR393 accepted the said three rules, among others, as useful guides to test the question of repugnancy. In Zaverbhai Amaidas v. State of Bombay : [1955]1SCR799 , this Court laid down a similar test. As page 807 (of SCR): (at p. 757 of AIR), it is stated:
The principle embodied in Section 107(2) and Article 254(2) is that when there is legislation covering the same ground both by the centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.
Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:
(1) Whether there is direct conflict between the two provisions;
(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and
(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.
38. The often quoted Judgments of Calcutta High Court reported in : AIR1939Cal628 (G.P. Stewart v. Brojendra Kishore Roy Chaudhury), mentions the position as under:
54. Negativing the contention, the Court quoted with approval the following observations of B.N. Rau, J. in G.P. Stewart v. Brojendra Kishore Roy Chaudhury : (AIR pp.632-32)
It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says 'do' and the other 'don't', there is no true repugnance, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test: there may well be cases of repugnancy where both laws say 'don't' but in different ways. For example, one law may say 'no person shall sell liquor by retail, that is, in quantities of less than five gallons at a time' and another law may say, 'no person shall sell liquor by retail, that, in quantities of less than ten gallons at a time'. Here, it is obviously possible to obey both laws, by obeying the more stringent of the two,namely, the second one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified.
We have re-produced the above portion from the Judgment of Hon'ble Apex Court reported in State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors. (supra), wherein the Hon'ble Apex Court has held that possibility of simultaneous obedience is not a relevant test for finding out the repugnancy.
39. The consideration of case law above in the light of facts which have come on record, therefor, clearly show that the additional requirement of possessing 60% marks in subject speciality cannot be viewed as a higher or additional or further requirement but it is repugnant and in conflict with one prescribed by Dental Council of India Regulations 2007. It is apparent that the norm prescribed by Dental Council of India Regulations is therefor adversely affected and in present facts, it is almost destroyed. Respondent No. 8, who is below petitioner, steals march over him because she fulfills the said additional or further requirement of possessing 60% marks in Conservative Dentistry. We, therefor, find that when field was fully occupied in view of provisions of Entry 66 of List I, respondent No. 1 could have provided any norm only if it satisfied the requirement of Article 254 of Constitution of India and not otherwise. The norm prescribed does not satisfy said requirement but it adversely prejudices the norm prescribed by Dental Council of India and it eliminates a candidate who is more meritorious as per Dental Council of India from consideration itself. Any candidate though down below in the merit list, can be selected only because he/she has 60% marks in subject speciality. Thus, concept of merit itself is drastically changed and the argument that merit as defined by DCI is further raised by State Government is, therefore, misconceived. We are, therefore, not in a position to accept the contention of learned Advocate General or learned ASGI that said norm is a higher qualification prescribed by respondent No. 1 in consonance with the norms for admission prescribed by Dental Council of India Regulations.
40. The learned Advocate General has however argued that the interpretation by this Court in this respect cannot affect the admissions already made and it has to be given a prospective effect. The prospective effect given by Hon'ble Constitutional Bench of Apex Court towards Judgment in the case of Dr. Preeti Srivastava v. State of M.P. (supra) has been pointed out by placing reliance upon paragraph 63 of the Judgment. Perusal of said Judgment shows that the Hon'ble Apex Court has set aside the provisions of Uttar Pradesh Post Graduate Medical Education (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1997 and GO dated 7.6.1997 of the State of Madhya Pradesh but there as students had already taken admissions and were pursuing their studies of Medical, Hon'ble Apex Court stated that they will not be affected. It is to be noted that the impugned modifications were introduced in June 1997 itself and admissions were accordingly completed. The Hon'ble Apex Court was approached in 1997 itself but then the decision could be taken by Hon'ble Apex Court only on 10.08.1999 i.e. more than two years after the impugned admissions.
41. The other Judgment relied upon by learned Advocate General is : AIR2005SC666 (Mridul Dhar (Minor) and Anr. v. Union of India and Ors., and Hon'ble Apex Court there has considered the issue of sanctity of time schedule in paragraph 31, 32 and 35 of its Judgment. There cannot be any debate about the necessity of adhering to time schedule in the matter. : AIR2004SC2212 (Saurabh Chaudri (Dr.) and Ors. v. Union of India and Ors., is the other Judgment relied upon by the respondent No. 1 for very same purpose. There the Hon'ble Apex Court had on 04.11.2003 decided the issue whether any reservation be it based on residence or institutional preference, was constitutionally permissible in PG courses of study. The reported judgment is an Order passed by majority on several applications which came up before Hon'ble Apex Court seeking clarification or directions for implementing its Judgment dated 04.11.2003. Consideration in paragraphs 3 and 4 show that the admissions were already over and students were prosecuting their studies and it was noticed that in Judgment dated 04.11.2003, it was not indicated whether the law as expanded would govern the admissions which had already commenced. There was no expressed mention whether the decision of the Hon'ble Apex Court in the case of Dr. Dinesh Kumar (II) v. Motilal Nehru Medical College : [1986]3SCR345 was prospectively overruled or not. It is in this background that the Hon'ble Apex Court has stated that this Judgment dated 04.11.2003 would have prospective application and thus excluded from its operation the admission process which had already commenced and was nearing finalization when the said Judgment came to be pronounced. The descending view therein shows that in Para 20, Hon'ble Apex Court has observed that by reason of a Judgment, a law is declared and such declaration may affect the rights of parties retrospectively and, therefor, prospective application of a Judgment needs to be expressly stated. In paragraph 28, in descending view, the Hon'ble Apex Court observed that right of a meritorious student to get admission in a Post Graduate Course is a fundamental and human right requiring protection and it could not be permitted to be whittled down at the instance of less meritorious students. Learned Counsel for the petitioner has relied upon Judgment of Hon'ble Apex Court reported at : [1983]2SCR801 (Punjab Engineering College v. Sanjay Gulati and Ors.), particularly paragraph 4 and 5. The observations are as under:
4. Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulations, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out. Indiscipline in educations institutions is not wholly unconnected with a lack of sense of moral values on the part of the administrators and teachers alike. But, the problem which the courts are faced with in these cases is, that it is not until a period of six months or a year elapses after the admissions are made that the intervention of the court comes into play. Writ Petitions involving a challenge to such admissions are generally taken up by the High Courts as promptly as possible but even them, students who are wrongly admitted finish one or two semesters of the course by the time the decision of the High Court is pronounced. A further appeal to this Court consumes still more time, which creates further difficulties in adjusting equities between students who are wrongly admitted and those who are unjustly excluded. Inevitably, the court has to rest content with an academic pronouncement of the true legal position. Students who are wrongly admitted do not suffer the consequences of the manipulations, if any, made on their behalf by interested persons. This has virtually come to mean that one must get into an educational institution by means, fair or foul : Once you are in, no one will put you out. Law's delays work their wonders in such diverse fashions.
5. We find that this situation has emboldened the erring authorities of educational institutions of various States to indulge in violating the norms of admission with impunity. They seem to feel that the Courts will leave the admissions intact, even if the admissions are granted contrary to the rules and regulations. This is a most unsatisfactory state of affairs. Laws are meant to be obeyed, not flouted. Some day, not distant, if admissions are quashed for the reason that they were made wrongly, it will have to be directed that the names of students who are wrongly admitted should be removed from the rolls of the institution. We might have been justified in adopting this course in this case itself, but we thought that we may utter a clear warning before taking that precipitate step. We have decided, regretfully, to allow the aforesaid 16 students to continue their studies, despite the careful and weighty finding of the High Court that at least eight of them, namely, the seven wards of employees and Ashok Kumar Kaushik, were admitted to the Engineering course in violation of the relevant rules and regulations.
42. In present facts as already stated above, on 17.02.2009, the Hon'ble Minister for respondent No. 1 accepted the additional norm prescribed by State Government to be unnecessary and directed its removal. The State Government thereafter had sent a letter to Dental College of India and till today, is awaiting its response. The process for admission started on 23.03.2009 when the notice to that effect was published on notice board of respondent No. 2-College. The seats available for Post Graduation were only six. News paper advertisement was published sometime in the first week of April, 2009 and the Courses are to be commenced from 31.05.2009. According to the petitioner, the Courses are to be commenced from 01.06.2009. However, it is apparent that petitioner therefor has approached this Court immediately after the publication of advertisement and this aspect is already dealt with by us above. We find that here 'merit' as determined by DCI Regulations, is only constitutionally valid and relevant. Interference with it by State Government is unauthorized. No question of estoppel, therefore, arises in the matter and petitioner cannot be said to have acquiesced in State modifications. Still there is time of about four weeks for Courses to start. The entire schedule for admission as per Paragraph 4 of Writ Petition was from 23.03.2009 till 28.05.2009 and thereafter time till 01.06.2009 has been given to students selected in second round of Counseling. Thus, time till first counseling expired on 14.04.2009 and students who got admission in first round were supposed to join by 20.04.2009. The date of selection in second round for counseling is supposed to be 20.05.2009. Thus, as on today, the first five stages as mentioned in Paragraph 4 of Writ Petition are only over.
43. In view of these facts and position, we find that contention of learned Advocate General that view taken by this Court needs to be implemented from next year cannot be accepted. The request for prospective application of Judgment cannot be entertained and it needs to be rejected.
44. We accordingly, quash and set aside the requirement of possessing 60% marks in subject speciality prescribed by Goa Rules 1988 (Supp) as violative of Article 254(1) and direct respondent Nos. 1 and 2 to issue fresh advertisement in terms of Dental Council of India Revised MDS Course Regulations 2007 and complete the process of admission as early as possible within four weeks of receipt of copy of this Judgment. After considering the fact that the process was already undertaken once and availability of only six seats with respondent No. 2- College, we feel that the process can be completed within one month. In order to avoid any confusion, it is clarified that the Rules of respondent No. 1 to the extent not quashed by us be applied with while finalizing the select list.
45. The admissions given by respondent No. 2 to respondent Nos. 4 to 8 are hereby quashed and set aside. The respondent No. 2 is directed to publish fresh notice and notify the changed norm for admission to all students and thereafter process further the applications received in response thereto. We also direct that students like petitioner and respondent Nos. 4 and 8 and other students who have already applied in response to earlier advertisement, need not apply again and their applications will be re-considered in the light of changed norm in accordance with law.
46. Writ Petition is thus allowed. However, in the circumstances of the case, there will be no order as to costs.
47. Certified copy to the expedited.