B.N. Deshmukh, J.
1. These petitions are filed by the students who have applied for admission to First year M.B.B.S. Course for the year 1992-1993 in Government Medical Colleges. As the point involved in all these petitions relates to the eligibility prescribed under the rules framed by the Government for admission for the year 1992-1993, they are heard together and are disposed of by this judgment.
2. Though there is a slight difference between the facts in all the petitions, it will suffice to mention the facts in detail in Writ Petition No. 1847/1992 for considering the claims of the petitioners for admission to First Year M.B.B.S. Course.
3. The petitioner in this writ petition appeared for the first time for 12th Standard examination held in the month of March 1991. She was declared failed. She has further appeared for the said examination in Oct., 1991, but she was absent in Hindi subject because of her illness; again she was declared as failed. Thereafter, in the month of March, 1992, the petitioner appeared only in Hindi subject and, as she has cleared off that subject, she was declared to have passed the 12th Standard examination. The claim of the petitioner is that as she had passed the qualifying examination as prescribed by the rules, by taking together the subjects of Physics, Chemistry, Biology and English in the month of Oct., 1991 examination, she is eligible and entitled to be admitted to the First Year M.B.B.S. Course on the basis of the rules which were existing prior to the rules of admission for the year 1992-1993.
4. To consider the claim of the petitioners, it is necessary to refer to the rules of 1991-1992, and the change made thereafter for admission for the year 1992-1993. The rules of admission for the year 1991-1992 prescribe the eligibility in Rule (C)(3) as follows :
'Qualification.---The qualifying examination for admission to medical college is ---
(i) Higher Secondary Certificate (10 + 2) standard examination of the Maharashtra State Board of Secondary and Higher Secondary Education situated in the State of Maharashtra and consisting of the subjects of Physics, Chemistry, Biology and English.
(ii) The Indian School Certificate (Standard XII) Examination or any other equivalent Higher Secondary (Standard XII) Examination of a Council or Board outside Maharashtra State in the subjects of Physics, Chemistry, Biology and English from an institution located in Maharashtra State.'
In these rules a candidate who has obtained not less than 50% of the total marks in English and the Science subjects i.e. Physics, Chemistry and Biology taken together at one and the same attempt in the qualifying examination was eligible for admission to the First Year M.B.B.S. Course. The only difference made was in respect of backward class candidates. Instead of 50% of the total marks, the percentage was reduced to that of 40%. The candidates who have obtained 50% of total marks in English, Physics, Chemistry and Biology were required to take all these subjects together at one and the same attempt in the qualifying examination. The qualifying examination for admission to medical college is Higher Secondary Certificate (10 + 2) Standard examination of the Maharashtra State Board of Secondary and Higher Secondary Education, situate in the State of Maharashtra, and consisting of the subjects of Physics, Chemistry, Biology and English.
In this petition, we are concerned only with the candidates who have passed 12th Standard Examination from the Board of Secondary and Higher Secondary Examination in Maharashtra State. We are not concerned with the candidates who have passed 12th Standard examination from outside the State of Maharashtra.
5. The Government has framed rules for admission to First Year M.B.B.S. Course for the year 1992-1993. Relevant rule regarding qualifying examination and eligibility reads as under:
'Qualification.---The qualifying examination for admission to medical college is ---
(i) ... ... ...
(ii) The Indian School Certificate (Standard XII) Examination of a Council or Board outside Maharashtra State in the subjects of Physics, Chemistry, Biology and English from an institution located in Maharashtra State. He must have passed the qualifying examination in all subjects.
(4) A candidate for admission against the open seats to the medical course must have obtained not less than 50 per cent of the total marks in English and the Science subjects (i.e. Physics, Chemistry and Biology) taken together at one and the same attempt in the qualifying examination. Candidates belonging to the Backward class communities (i.e. Scheduled Castes and Scheduled Castes converts to Buddhism, Scheduled Tribes, including those living outside specified areas, Denotified Tribes and Nomadic Tribes and Other Backward Communities) and applying for admission to reserved seats must have obtained not less than 40 per cent of the total marks in English and the Science subjects (i.e. Physics, Chemistry and Biology) taken together at one and the same attempt in the qualifying examination.
The candidate has to pass the qualifying examination taking together the subjects Physics, Chemistry, Biology and English in the same attempt i.e. he/she has to pass the examination taking all subjects together in one sitting or in the same attempt. Exemption in the subject will disqualify the candidate.'
Important changes made in this rule, from the rules which were governing the admission of earlier years, more particularly, for the year 1991-1992, can be summed up as follows :
'(i) Additional condition provided for in the rules for 1992-1993 is with regard to the qualifying examination providing that the candidate shall have to pass the qualifying examination in all the subjects.
(ii) In addition, it is provided, 'the candidate has to pass the qualifying examination taking together the subjects Physics, Chemistry, Biology and English in the same attempt (i.e. he/she has to pass the examination, taking all the subjects together in one sitting or in the same attempt). Exemption in the subject will disqualify the candidate.'
6. Claim of the petitioner is two-fold. That when the petitioner was studying in 12th Standard examination, the rules of admission which were prevailing then are the rules for the year 1991-1992. The change made in the eligibility for admission to 1992-1993 cannot be made applicable for admission to the petitioner or other candidates as the petitioner proceeded to prepare for the examination on the basis of the rules which were in operation when the petitioner commenced her studies in 12th Standard Examination. The claim is based on the doctrine of promissory estoppel as well as legitimate expectations.
Second ground on which the claim of the petitioner seems to be founded is that there are candidates who are similarly situated to that of the petitioner in the matter of qualifying examination and taking together of the subjects of Physics, Chemistry, Biology and English with more than 50% of marks and passing all these four subjects in one and the same attempt. Those candidates are admitted by the private medical colleges allowed to be run by the State Government or by the colleges run by various Municipal Corporations. The claim is also based on the fact that the private medical colleges in the State and the medical colleges run by various Municipal authorities have not followed the rules of admission framed by the State Government for the year 1992-1993 but have admitted the candidates on the basis of eligibility criteria prescribed in the rules framed for admission for the year 1991-1992.
7. The third basis on which the claim of the petitioner is tried to be supported is on the basis of the rules of eligibility prescribed under various Ordinances of the different Universities situated in Maharashtra State.
8. Shri Bora, learned Counsel appearing for University, in one of the petitions, has supplied us prospectus of almost all the private medical colleges except one and the provisions of Ordinances made by various Universities with regard to admission to M.B.B.S. Course. There are two private medical colleges in Marathwada University area. From the prospectus of the medical college supplied to us, it can be gathered that on the basis of rules of admission framed for 1991-1992, the admissions are given by the private medical college and the rules framed for the year 1992-1993 are not considered for admission to the First Year M.B.B.S. course by this college.
9. From the prospectus of other private medical colleges supplied to us it can be gathered that in almost all the colleges admissions were given on the basis of rules framed by the Government for the year 1991-1992 and the Rules for the year 1992-1993 are not considered for admission for the year 1992-1993.
10. In this connection, a reference can be made to the Ordinances framed by different Universities. So far as Marathwada University is concerned, the Ordinance which is in force is Ordinance No. 211(a) and describes that a candidate, for admission against open seats to the medical courses, must have obtained not less than 50% marks in English and Science subjects (i.e. Physics, Chemistry and Biology) taken together at one and the same attempt at the qualifying examination. Candidates belonging to the Backward Class communities (i.e. Scheduled Castes and Scheduled Castes converts to Buddhism, Scheduled Tribes, including those living outside specified areas, De-notified Tribes and Nomadic Tribes and other Backward communities) and applying for admission to a reserved seat must have obtained 40% marks in English and Science subjects i.e. Physics, Chemistry and Biology taken together at one and the same attempt in the qualifying examination.
The provision of Ordinances of other Universities is practically the same except in the Universities of Poona and Bombay where it is categorically mentioned that,
'No candidate shall be allowed to be admitted to the Medical Curriculum proper until,
(i) ... ...
(ii) he has passed
(a) the H.S. Examination (10 + 2) year course of the Maharashtra State Board of Higher Secondary Education with six subjects, including Mathematics or relevant examinations...'
11. The petitioners, therefore, challenge denial of admission to them on several grounds. Firstly, on the ground of existence of the rule at the time of their admission to 12th Standard Examination and planning by them on the basis of those rules. The challenge is based on the doctrine of `promissory estoppels' and `legitimate expectations'. Secondly, on the basis of principles of natural justice as, according to them, no notice was issued to them before effecting any change in the rules.
12. The other basis of the challenge is on the ground of discrimination - that the rules of admission regarding private medical colleges and so also on the basis of Ordinances of the Universities, more particularly, on the basis of provision of Ordinance 211(a) of the Marathwada University.
13. Having regard to the provisions of the rules framed by the State Government, the Ordinance of the University and the provisions regarding eligibility for admission to private medical colleges are at variance. The Counsel for the petitioner, Shri Sakolkar, Shri Deshmukh, Shri Warad and Shri Patil, argued that the candidates similarly situated to the petitioners have already been admitted to the private medical colleges and other colleges managed by the Municipal Corporations and the petitioners are denied admission which results in discrimination which is arbitrary and unreasonable. The denial of admission, therefore, is challenged on the basis of the provisions of Art. 14 of the Constitution of India.
14. In a private medical college there is a provision for management quota to the extent of 20% of seats only. The Government has also power to fill in 20% of the seats, popularly known as 'Government quota'. The candidates are admitted by the management to 20% of management quota by not applying the Government rules for this year but by applying the rules as printed in the prospectus. Net result is, in the same class, for the First Year M.B.B.S. Course, in a private medical college, there are students who are given admission following the rules as framed for admission for the year 1992-1993, while students admitted to management quota are granted admission on the basis of rules which were applicable for admission for the year 1991-1992 and not on the basis of the admission rules of 1992-1993. This results in discrimination which is hostile and has no nexus with the object sought to be achieved, in view of the fact that some of the students are already admitted by following the rules provided by the management, ignoring the rules framed by the State Government for the year 1992-1993.
15. It is also argued, on the factual aspect, that some of the petitioners were selected for admission to Nanded college. As those petitioners were not selected for admission to colleges of their choice, in order of preference, when these candidates were selected for admission to Nanded college, 30% of State level seats were yet to be filled in. Therefore, they waited for a chance to get admission as against State level seats in 30% quota, to enable them to get admission in the college of their choice. When they did appear in the inter se merit for 30% quota meant for State level admissions and when they were called for interview with documents, at that time they were told that they are not eligible for admission to First year M.B.B.S. Course because of the exemptions which they have obtained for passing the 12th Standard examination. In the rules of 1992-1993, passing by exemption is made disqualification for admission to M.B.B.S. Course. Such of the petitioners who were selected for admission, were selected for admission in Government Medical College at Nanded. According to the petitioners, therefore, the Government was not strictly adhering to the rules of 1992-1993. In that event those candidates would not have been selected for admission to a Government Medical College at Nanded.
16. In this connection, Shri Ghatge, Assistant Government Pleader, had contended that the authorities have not committed any error in denying admission to the petitioners who were not entitled for admission to the First Year M.B.B.S. Course on the basis of disqualification provided for by way of exemption. Mere selection for admission to First Year M.B.B.S. Course does not create any right in favour of the petitioners to get admission in a Government Medical College.
17. Admittedly, the Government has not framed any rules this year for admission to the candidates as against management quota. However, he invited our attention to the terms and conditions on which permission to run a medical college is granted to the private institutions. Copy of the Government resolution dated 25th April, 1990 regarding granting permission to private medical colleges on no grant basis is made available to us. This resolution relates to opening of a medical college by Nashik Zilha Vidya Prasarak Samiti, Nasik. This resolution mentions the terms and conditions on the basis of which permission in granted to that college. We are told that similar terms and conditions are imposed while granting permission to open medical college by private institutions. Term No. 5 provides that the 20% seats are allowed to the management by way of 'Management quota'. Term No. 7 provides that the management shall frame the rules for admission to students practically on par with the rules framed by the State Government for admission to medical college. In term No. 10 it is mentioned that it is essential to maintain the standard of education, therefore, following special condition is imposed on them:
'That the management shall follow the existing Rules and changes made from time to time.'
No separate Rules for 1992-1993 were required to be made as the change in the Rule is automatically effective under these conditions.
18. One more aspect which requires consideration is the Ordinances framed by the Marathwada University and/or other Universities as these private medical colleges are all recognized and affiliated to Marathwada University or other Universities in the State. In this connection, we may refer to the provision of the Marathwada University Act also as the provision in this connection is almost similar to as given in other Universities Act. Section 39 empowers the Executive Council to make Ordinances to provide for all or any of the following matters.
' ... ...
(i) The conditions under which the students shall be admitted to courses of study for degrees, diplomas, certificates and other academic distinctions.'
In exercise of this power the Marathwada University had framed an Ordinance 211(a) in this regard. As the colleges are affiliated to the University, they are bound not only by the rules framed by the State Government but are also bound by the Ordinances framed by the Marathwada University to regulate the admissions to the courses, more particularly so, regarding the eligibility prescribed by these rules.
19. Shri Bora, learned Counsel appearing for the University invited our attention to the decision of the Supreme Court in D.N. Chanchala v. State of Mysore, : AIR1971SC1762 , where power of the Government to frame Rules in addition to the provisions of Ordinances is upheld, if they are not inconsistent with the Ordinance.
20. The admission to private medical colleges, even as against Management quota, has therefore, to be in confirmity with the requirements of the Ordinance of the University and the Government rules, more particularly so, in view of the terms and conditions on which the permission is granted by the State Government to run a private medical college.
21. Though different eligibility criteria seem to have been applied while granting admission to medical college as against Government seat and Management quota, by different colleges, we fail to understand as to how the private medical colleges can be allowed to apply a different eligibility criteria for admission to Medical Course. As already stated, that they are bound to follow the rules of the State Government, as amended from time to time. They are also bound by the Ordinances framed by the University in this regard. A useful reference can be made to the recent decision of the Supreme Court in Unikrishnan v. State of Andhra Pradesh, in Writ Petition (C) No. 607/1992, decided on 4th Feb., 1993. In this case the Supreme Court, with respect to the opening of private medical colleges in the country, in the majority judgment of Justice Jeevan Reddy, so far as the eligibility criteria is concerned, has observed,
'There shall be no quota reserved for the management, or for any family, castes or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the payment students.'
22. The criteria prescribed by the State Government in the rules of 1992-1993 should have been followed for admission of the candidates as against management quota also. We would like to state at the outset, having regard to the material produced and arguments advanced before us, that there is no co-ordination between the management of the private medical colleges, authorities of the University and the Government. There is no proper supervision kept either by the University or by the Government to see that the rules framed by the Government for admission are strictly adhered to and followed in the matter of admission to the medical courses. The private medical colleges have no authority to whittle down the criteria regarding eligibility or qualifying examination, etc. which they seem to have not followed for admitting the students for the year 1992-1993. This seem to have happened not only regarding admission to private medical colleges but while admitting the candidates by the colleges maintained and managed by the Municipal Corporations in the State. Apart from this, it is very surprising to find as to why some of the petitioners were selected for admission to Nanded Medical College. If they would not have waited for getting admission in a medical college of their choice, probably, they would have been admitted by giving a go-bye to the criteria prescribed to in the 1992-1993 rules even in Government college. The entire episode indicates the sorry state of affairs in a very competitive field like that of admission to a medical college. The lack of supervision by the Government and University authorities has resulted in chaos in the matter of admission to medical courses.
23. The Counsel for the petitioners, for invoking the doctrines of `promissory estoppels' and `legitimate expectations' relied upon the decision of this Court in Kush s/o Damodhar Jhunjhunwala v. State of Maharashtra, Writ Petition No. 1614 of 1992, decided on 6-19/22-10.1992 (Nagpur Bench). There is no doubt that some part of this judgment seem to support the contentions raised on behalf of the petitioners. However, the decision can be distinguished on facts, so also we are unable to appreciate as to how the ratio laid down in Kush's case can be preferred as against the ratio laid down by the Full Bench of this Court in Ashwin Prafulla Pimpalwar v. State of Maharashtra, : AIR1992Bom233 (F.B.). The question of planning of the studies by the candidates looking to the rules, which found favour with the Division Bench, is actually not approved by the Full Bench at all. What is considered is that the meritorious students plan for the merit and do not plan for passing merely with a view to getting admission to a particular course.
24. The criteria and eligibility has to be considered on the basis of equal opportunities. The mentioning of one and the same attempt even in the rules of 1991-1992 indicates that the candidate must pass the qualifying examination in that attempt only, in which the four subjects are taken together. Reading otherwise would result in absurdity and it would mean that a candidate, who has failed 12th Standard Examination but has merely passed with merit in the subjects of English, Physics, Chemistry and Biology, would be entitled to seek admission to M.B.B.S. Course, irrespective of his failure or passing at that examination. The intention of framers of the rules seems to be in favour of passing 12th Standard Examination; and in that examination passing of all the subjects and also by taking the subjects of English, Physics, Chemistry and Biology together in that examination only. To consider the question on the basis of promissory estoppel or on the basis of legitimate expectations means the planning, which is available for the students within the legal framework of the rule and not by over-stressing or transgressing the limits prescribed by the rules. The provisions of Regulation 101 of the Maharashtra State Secondary and Higher Secondary Board Regulations, 1977, where passing of 12th Standard Examination is made available by obtaining exemption in the subject does not affect the eligibility criteria for admission to M.B.B.S. Course. The exemption under Regulation 101 may entitle a candidate to obtain a certificate of passing, but the rule cannot be interpreted to extend the exemption regarding the eligibility criteria which is fixed not by the Regulations of 1977, but by the rules of admission for 1992-1993.
25. It is true that some candidates are admitted without applying the rules of 1992-1993 in private medical colleges, and, probably also in the medical colleges run by the Municipal Corporations in the State. So also, some candidates were, in fact, selected for admission to Government College at Nanded. But, we are told that no such student is admitted in the Government Medical College.
26. Merely because the candidates were selected for admission to Government Medical Colleges does not create a right in the petitioners to seek and get admission without fulfilling the requirements of eligibility, as though some candidates were selected for admission to Government Medical College, but, actually none is admitted. There is no question of any discrimination between any candidate admitted in the Government College and the petitioners.
27. Though the candidates are admitted in private medical colleges in violation of the rules of 1992-1993, there is no challenge to the admission of any of such students, who are actually admitted in private medical colleges. The petitioners have not at all applied for admission to private medical colleges; on the contrary, they have applied for admission to Government Medical Colleges. In view of this, the petitioners cannot be said to be similarly situated to that of the candidates who are admitted in private medical colleges, as the petitioners have not applied for admission to private medical colleges.
28. Having regard to the rules of eligibility, we do not see any reason as to how the claim of the petitioners can be considered for admission to a Government Medical College or to a seat in a private medical college as against the Government quota.
29. At this stage, Counsel for the petitioner in Writ Petition No. 1853/1992 seeks permission to withdraw the said writ petition, as the petitioner is admitted in Rajiv Gandhi Medical College at Thane. In view of the admission of the petitioner in the said college, petition is allowed to be withdrawn on equitable considerations.
30. In rest of the petitions, Rule stands discharged. No order as to costs.