V. M. Sahai, J.
1. The petitioner in Writ Petition No. 2447 (M/S) of 1999 passed intermediate examination conducted by the Board of High School and Intermediate Education. U. P. in 1993. He secured 46.2 per cent marks and was placed in second division. His subjects were Physics, Chemistry and Biology. In April, 1999 the State Government, in exercise of powers under Section 28 (5) of the U. P. State Universities Act, 1973, issued an order for conducting competitive entrance examination known as, Combined Pre-Medical Test, 1999 (in brief C.P.M.T. 1999). The work of conducting the examination was entrusted to the Roorkee University. The university issued an advertisement which was published in newspaper Dalnik Jagaran on 22.4.2000 inviting applications for admission to firstyear course of M.B.B.S., B.D.S., B.H.M.S., B.A.M.S. and B.U.M.S. for the academic session 1999-2000. The minimum qualification prescribed for appearing in the examination, as per the adverllsement, was that the candidate must have passed Intermediate science with Biology group, conducted by the Board or equivalent examination. Sale of forms commenced from 3.5.1999. Last date for receipt of application was 27.5.1999. The petitioner purchased the form. Along with it a brochure was supplied to him. In clause (3) of paragraph 1 of the brochure, it was provided that for admission to M.B.B.S. the conditions laid down by the Medical Council of India (in brief M.C.I.) In the Regulations framed by It known as Regulation on Graduate Medical Education, 1997 (in brief Regulations) shall be applicable. But so far eligibility for appearing in the examination was concerned, it provided that the candidate must have passed in Physics, Chemistry and Biology including practical from any Indian University or Board or any recognised institution. Further it was necessary to have passed in English along with science subjects in the qualifying examination (intermediate examination or equivalent). Since the petitioner satisfied the eligibility criteria as provided in the advertisement and the brochure, he was permitted to appear as a general category candidate in C.P.M.T., 1999 examination held on 11.7.1999. Result of the examination was declared on 14.8.1999. He was declared successful. He secured 80.5% and was placed at 472 position in the merit list of successful candidates. He was called for counselling on 27.8.1999. But a notice was published in newspaper Dalnik Jagaran on 26.8.1999 by Director General, Medical Education & Training, Lucknow, that in view of the decision dated 10.8.1999 of the Constitution Bench of the Supreme Court and directions issued by M.C.I. on 17.8.1999 and 20.8.1999, the dates of counselling is being re-fixed and the same shall now be held between 5.9.1999 to 13.9.1999 and the candidates desirous of admissionmust have passed and secured in the qualifying examination minimum 50% marks in Physics, Chemistry and Biology taken together and must have passed in English. The other eligibility condition for general candidates was that be must have obtained 50% marks in the C.P.M.T.-1999 examination. The candidates were required to bring their mark-sheets of qualifying examination at the time of counselling for admission to M.B.B.S. and B.D.S. course. Since the petitioner had secured less than 50% marks in the qualifying examination in Physics, Chemistry and Biology taken together, he was not permitted by the respondents to participate in counselling. He filed the Instant writ petition challenging the notice dated 26.8.1999 published in newspaper Dainlk Jagaran by the Director by which the new eligibility qualifications were prescribed. He has also challenged the directions issued in this regard by the M.C.I. dated 17.8.1999 and 20.8.1999 as arbitrary. By an interim order dated 2.9.1999 he was permitted to participate in the counselling, provisionally, and by another Interim order dated 7.10.1999. one seat was directed to be kept reserved for him.
2. The petitioner in Writ Petition No. 3208 (M/S) of 1999 passed intermediate examination in 1993 in second division securing 236 marks out of total 500 marks (47.25%), conducted by the Board. He appeared as a general category candidate in the C.P.M.T.-1999 examination held on 11.7.1999. He was declared successful in C.P.M.T.-1999 examination. He secured 504 marks out of total 600 marks (84%) and was placed at 142 position in the merit list of successful candidates. He was called for counselling on 27.8.1999. He was not permitted to participate in first or the second counselling though candidates who had secured lower marks than him had been admitted in M.B.B.S. course in G.S.V.M. Medical College, Kanpur. He claims that he is entitled for admission In M.B.B.S. course In G.S.V.M. Medical College, Kanpur. By Interim order dated 25.11.1999 one seat was directed to be reserved inM.B.B.S. course for him. Rest of the facts and ground of challenge and relief claimed in this writ petition are Similar to Writ Petition No. 2447 (M/B) of 1999.
3. I have heard Shri D. P. Singh learned counsel for the petitioners. Shri Sandeep Dixlt learned counsel appearing for University of Roorkee. Shri Amitabh Misra learned counsel for Medical Council of India and Shrl S. Lal learned standing counsel for other respondents to the writ petitions. Since both the petitions raise common question of law, therefore, they are taken up together for final disposal with the consent of counsel for the parties. The learned counsel for the parties agreed that Writ Petition No. 2447 (M/S) of 1999 be treated as the leading case.
4. Learned counsel for the petitioner urged that in the advertisement issued by the respondents for conducting C.P.M.T.-1999 examination, the only eligibility or qualifying criteria fixed by respondents for appearing in the examination was that the candidates must have passed intermediate science examination with Biology group. The same criteria were mentioned In the brochure with the condition that the candidate must have passed in English compulsory subject. Therefore, the respondents could not fix any other eligibility criteria, which was contrary to the terms of the advertisement. He further urged that the petitioners were successful in the C.P.M.T.-1999 examination securing high position of 472 and 142, therefore, they were entitled for admission in M.B.B.S. course in medical colleges according to their position in merit list. But the respondents arbitrarily did not permit the petitioners to participate in the counselling due to which they have been deprived Illegally from admission in M.B.B.S. course.
5. On the other hand, the learned counsel for the respondent/ university has urged that admission in M.B.B.S. course is governed by Regulations framed by the M.C.I., with previous sanction of Central Government. In exercise of powersconferred by Section 33 of the Indian Medical Council Act, 1956. The eligibility qualifications have been laid down in the Regulations. It was urged that in the Regulations it is provided that a candidate for admission to medical course must have obtained not less than 50% marks in English and 50% marks in Physics. Chemistry and Biology taken together. These Regulations were amended by M.C.I. on 10.5.1999. The amended Regulations provided that a candidate for admission to M.B.B.S. course must have passed the qualifying examination securing 50% marks in Physics, Chemistry and Biology taken together and must have passed in English. The learned counsel urged that even though the requirement of 50% In English was relaxed but there was no relaxation so far as 50% in aggregate for the other subjects was concerned. Therefore, the petitioners who had secured less than 50% in the qualifying examination did not satisfy the criteria laid down by the M.C.I. and the respondents acted in accordance with law in refusing admission to them. The learned counsel further urged that the controversy whether the Regulations framed by the M.C.I. are binding or not has been set at rest by Constitution Bench of the Apex Court in Dr. Preeti Srivastava and another v. State of Madhya Pradesh and others, JT 1999 (5) SC 498. It was held that the Regulations framed by M.C.I. are binding on the universities and the State Governments and they cannot frame Rules and Regulations or Issue any Government order, which is in conflict with or adversely impinges upon the Regulations framed by the M.C.I. The learned counsel urged that the effect of the decision was that the Regulations which were framed earlier became binding and the advertisement Issued by the Government which was contrary to the Regulations has to be so read as to give effect to it. And since the petitioners secured below 50% marks In Physics. Chemistry and Biology taken together they were not eligible for admission to M.B.B.S. first year course. The learned standing counseland learned counsel appearing for M.C.I. adopted the arguments of learned counsel for the university.
6. The question that arises forconsideration is whether thepetitioners who satisfied theeligibility criteria as mentioned in theadvertisement and the brochure onthe date of applying and appearingfor examination and were declaredsuccessful in the competitiveexamination of C.P.M.T.-1999 werejustifiably prevented from appearingin the counselling and denial ofadmission in the M.B.B.S. To answerthis question, it is necessary tomention few facts. The admission tomedical course is governed byRegulations framed by the M.C.I. Thefirst Regulation was framed in 1979.It was known as Regulations onUndergraduate Medical Education,1979. The Regulation provided that astudent shall be admitted to medicalcourse strictly on merits through acompetitive entrance to achieve auniform evaluation due to variation instandard of qualifying examinationconducted by various agencies. TheRegulation further provided that onlythose students shall be eligible toappear in the entrance examinationwho had not secured less than 50% ofthe total marks obtained in Englishand science subjects taken together.And for selection, a candidate wasrequired to obtain 50% in English andthe science subjects taken together Inthe competitive entranceexamination. Another Regulation wasframed In 1997. This Regulationprovided that a student appearing inthe entrance examination for themedical course must have obtainednot less than 50% in English and 50%in science subjects taken together.Similarly a candidate must not haveobtained not less than 50% inEnglish and 50% taken together inscience subjects. Therefore, there waschange both in the eligibility criteriaand the selection and a candidatewas required to secure not less than50% in English. In the affidavit filedon behalf of the M.C.I., it is statedthat representations were receivedfrom various examining bodiesagainst the conditions provided bythe Regulation of 1997 including therequirement of securing not less than 50% in English and science subjects. The M.C.I., therefore, after consultation and with permission of the Central Government relaxed the eligibility criteria provided in the Regulation of 1997 initially for 1997-98 and then for 1998-99 and 1999-2000 and clarified that the provisions of the Regulations of 1979 in regard to marks criteria may be followed. This clarification was later on incorporated in the Regulation Itself by amending the 1997 Regulation on 10.5.1999 published in Gazette on 29.5.1999. It provided that a candidate appearing in the entrance examination must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% in Physics. Chemistry and Biology taken together. The Regulation framed by the M.C.I. in 1997 and the clarification issued by it on 9.12.1998 were in force when the State Government Issued the advertisement in April 1999. But it did not abide by the Regulation of the M.C.I, on marks criteria either for the qualifying examination or for final selection. It set down its own norms as indicated earlier. The reason for not following the Regulations was that the Apex Court in State of Madhya Pradesh and another v. Kumari Nivedita Jain and others, (1981) 4 SCC 296 and Ajay Kumar Singh and others v. State of Bihar and others. (1994) 4 SCC 401. held that Entry 66 of List-1 of the VIIth Schedule to the Constitution would not apply to the selection of the candidates for admission to Medical Colleges and the State Government had power under Entry 25 of List-Ill of the VII, Schedule to fix norms for admission to medical colleges. And Regulation 2 of the Regulations for admission to M.B.B.S. courses framed by Medical Council of India was only recommendatory in nature, therefore, rules or Government orders Issued by State Government for admission to M.B.B.S, etc. courses was permissible. The State of Uttar Pradesh and the universities, therefore. were treating the Regulation framed by the M.C.I. to berecommendatory only and fixed their own norms for admission to M.B.B.S. course. Accordingly, the advertisement was Issued on 24.4.1999 Inviting applications for admission to first year M.B.B.S. and other courses through a competitive entrance examination C.P.M.T.-1999 and minimum eligibility qualification fixed was that the candidate must have passed intermediate science with biology group conducted by the Board or equivalent examination. In pursuance of it the examinations were held in July. 1999 and the results were declared on 14.8.1999. In the meantime the Constitution Bench of Apex Court on 10.8.1999 in Dr. Preeti Srivastava (supra), while considering admissions to post-graduate courses disagreed with the earlier decisions of the Court in Kumari Nivedita Jain (supra) and Ajai Kumar Singh (supra) and held that the State while controlling education could not Impinge on standards In higher education which were exclusively In the purview of the Union Government. The Court further held that from 1977 education including, medical and university education, being In the concurrent list, the Union can legislate on admission criteria also. And if it does so, the State will not be able to legislate in this field, except as provided in Article 254. The effect of the decision was that the Regulations having been framed by the M.C.I, with sanction of the Union Government became binding and the State could not pass any order contrary to it. After the judgment was delivered, the M.C.I. issued two letters one on 17.8.1999 and another on 20.8.1999 to the Director General. Medical Education & Training, U. P., Lucknow. In the first letter, it was mentioned that pending consideration by the M.C.I. the admission to M.B.B.S. course may be made on the criteria laid down in the Regulation framed in 1997. The second letter related to the 1999 examination conducted by the Roorkee University. This led to the issuance of the notice by the respondents on 26.8.1999 announcing change in the eligibility criteria of the qualifying examination. The notice provided that it wasnecessary for the candidates who appeared in the C.P.M.T. examination of 1999 to have secured 50% In the science subjects individually and taken together and to have passed in English.
7. The petitioners were, therefore, prevented from taking part in counselling and consequent denial of admission because of the opinion of the M.C.I. that the law laid down by the Apex Court applied to the C.P.M.T. examination of 1999 conducted by the Roorkee University. 1 have already mentioned that the entire process of examination was completed before the Judgment was delivered by the Apex Court and even the results were declared before the M.C.I, issued the letter on 17.8.1999 and 20.8.1999. The Apex Court in Copal Krushna Rath v. M.A.A. Balg and others, (1999) 1 SCC 544, held that where recruitment process has started and subsequently the eligibility conditions are changed after the last date for submission of application, that would not affect the selection process which has already commenced. Although this was a decision on service matter but I do not find any valid reason not to apply the principle to the present case. The respondents cannot be permitted to go behind the advertisement. In Manoj Kumar Gupta v. Co-ordinator Admission Committee, Moti Lal Nehru Regional Engineering College, 1985 UPLBEC 1004, a Division Bench of this Court held that the principle of Equitable Estoppel applied where a candidate selected for admission in B. Arch was denied admission even though he had not secured 55% in Intermediate examination because he was not informed before the date of interview that it was necessary condition. The case of the petitioners is still stronger. It is settled that the Rules or Regulations in absence of clear provision apply prospectively and not retrospectively.
8. There is another reason to hold that the respondents were not Justified In denying admissions to the petitioners. The Apex Court was aware that some of the States after the decision in earlier cases werelaying down their own norms whichwere different from the norms fixed bythe M.C.I. The Court, therefore, madeit clear that the decision in Dr. PreetiSrivastaua (supra), would beprospective in operation. In otherwords, the Regulations framed by theM.C.I, would be binding and shall beenforced by the States toexaminations conducted after10.8.1999. Since the entire process ofC.P.M.T. examination of 1999 hadbeen completed before the decisionwas given by the Apex Court, it couldnot be applied to it. Otherwise itwould result in applying theRegulations in pursuance of thedecision retrospectively. The M.C.I.did not fully appreciate the effect ofthe decision and erroneously issuedthe letter directing the Director toImplement the Regulations in respectof C.P.M.T. examination of 1999conducted by the Roorkee University.The respondent Director, therefore, inissuing the notice on 26.8.1999 actedcontrary to the law declared by theApex Court. If the letters of M.C.I.and the Director are given effect to ashas been done by the respondents, itwould result in reading the conditionsprescribed in Regulation 1997 in theadvertisement and brochure Issued bythe university. That in the eligibilityfor entrance examination advertisedin April. 1999 and on the basis ofwhich the candidates were permittedto appear in the examination held inJuly, 1999, shall stand altered inpursuance of the judgment of theApex Court delivered on 10.8.1999with effect from April, 1999. Thatwould be against the decision of theApex Court that the declaration of lawmade by it shall apply prospectively.
9. Consequently, the letters of M.C.I. and notice issued by the Director on 26.8.1999 permitting only those candidates to appear for counselling who satisfied the eligibility criteria of Regulation 1997 as mentioned in the notice are liable to be struck down. But I am refraining from adopting this course as it may result in upsetting the admissions granted by the respondents In C.P.M.T.-1999 for session 1999-2000. Instead I hold that the letters of M.C.I. and Directorwould not apply to petitioners. They were entitled to appear for counselling as they satisfied the eligibility criteria mentioned in the advertisement and brochure and are entitled for admission. Consequently, the letters of M.C.I. and notice of Director Issued to M.B.B.S. course 1999-2000. The petitioners could not, therefore, be denied admission to the first year of M.B.B.S. academic session 1999-2000.
10. In the result, both the writ petitions succeed and are allowed. Notice dated 26.8.1999 published in newspaper Dalnlk Jagaran issued by Director General, Medical Education and Training. U. P., Lucknow and letters of Medical Council of India dated 17.8.1999 and 20.8.1999 so far they are concerned with the C.P.M.T. examination 1999 conducted by the Roorkee University and relate to petitioners shall be treated as non est. Krishna Kumar Mishra petitioner in Writ Petition No. 2447 (M/S) of 1999 for whom a seat was reserved by interim order passed by this Court shall be admitted in M.B.B.S. first year course, session 1999-2000 in Gorakhpur Medical College within two weeks from the date a certified copy of this order is produced before Director General--Medical Education & Training, U. P.. Lucknow and Principal of the college. Any shortage in his attendance shall be condoned.
11. As regards Bipin Kumar Gupta, it is stated in the supplementary affidavit that he was granted admission in National Homoeopathic College. He, however. is entitled for admission in the medical college. It is not denied in the counter-affidavit that candidates securing lesser marks than the petitioner have been admitted in G.S.V.M. Medical College, Kanpur. Therefore, he is entitled for admission in M.B.B.S. first year course, session 1999-2000 in G.S.V.M. Medical College, Kanpur. Since by the interim order of this Court, the respondents were directed to keep one seat reserved for him, he shall be granted admission within two weeks from the date a copy of this order is served on the Director General, MedicalEducation & Training. U. P., Lucknow and Principal of the college. Any shortage in his attendance shall be condoned. In case there is no seat in G.S.V.M. Medical College, Kanpur, the respondents shall create one seat for the session 1999-2000 and shall grant admission to the petitioner. This, however, shall not delay the admission of the petitioner within the time specified above.
12. Parties shall bear their owncosts.