| SooperKanoon Citation | sooperkanoon.com/125894 |
| Subject | ;Constitution |
| Court | Guwahati High Court |
| Decided On | May-24-2007 |
| Judge | Jasti Chelameswar, C.J. and Hrishikesh Roy, J. |
| Appellant | Siddhartha Sarkar and ors. |
| Respondent | State of Assam and ors. |
| Disposition | Petition dismissed |
| Prior history | Jasti Chelameswar, C.J. 1. These three writ petitions, namely, WP (C) Nos. 2103/07, 4340/06 and 2084/07, were directed to be heard together by a common order of this Court dated 7.5.07 as these writ petitions raise certain common questions of law regarding the validity of the Rules framed by the State of Assam in the context of prescribing eligibility criteria for participating in Common Entrance Examination conducted by the State for selection of candidates for admission into professional cou |
Jasti Chelameswar, C.J.
1. These three writ petitions, namely, WP (C) Nos. 2103/07, 4340/06 and 2084/07, were directed to be heard together by a common order of this Court dated 7.5.07 as these writ petitions raise certain common questions of law regarding the validity of the Rules framed by the State of Assam in the context of prescribing eligibility criteria for participating in Common Entrance Examination conducted by the State for selection of candidates for admission into professional courses like medicine, engineering and dental sciences.
2. The undisputed facts are that the State of Assam conducts a Common Entrance Examination for the purposes of selecting students for pursuing the abovementioned courses. The conduct of such Common Entrance Examination insofar as it pertains to MBBS/BDS are concerned is governed by the Rules framed by the State of Assam called 'The Medical Colleges of Assam, Regional Dental College, Guwahati and Govt. Ayurvedic College, Guwahati Regulation of Admission of Undergraduate Students Rules, 2007. Insofar as the engineering courses are concerned, admittedly no separate set of Rules have been framed by the State of Assam. But the norms and procedure for selecting the students for engineering courses are said to be contained in a brochure issued by the Dibrugarh University titled 'Information Brochure and Application Form--Combined Entrance Examination 2007--For admission to the MBBS/BDS/BAMS courses and Engineering Degree Courses in the State of Assam'.
3. In so far as MBBS and BDS courses are concerned the impugned provision reads as follows:
In case of admission into MBBS/BDS courses the candidates must pass the qualifying examination without any grace marks in the subjects of Physics, Chemistry, Biology and English individually in the same sitting and must have obtained a minimum of 60% marks taken together in Physics, Chemistry and Biology at the qualifying examination in case of candidates belonging to the general category. In respect of candidates belonging to Scheduled Caste/ Scheduled Tribe, Other Backward Classes/ More Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in the qualifying examination shall be 50%.
4. Though no specific provision is brought to the notice of the court, it is admitted by all the learned Counsel appearing for the either sides that similar criteria are adopted even in the context of admission to the engineering courses except for the fact that the requirement of obtaining a minimum of 60% marks in the relevant subjects at the qualifying examination is to be substituted by 50% marks.
5. In substance, the stipulation of the State is that those who seek admission into the professional courses like MBBS/BDS and Engineering must have passed the qualifying examination, particularly the subjects of Physics, Chemistry, Biology and English must have cleared in one sitting. Secondly, such candidates must have secured a minimum of 60% of marks in the subjects of Physics, Chemistry and Biology though in the case of Backward Classes, Scheduled Castes and Scheduled Tribes the stipulation is that they must have passed the examination in the above mentioned subjects with 50% of the marks. These two conditions stipulated by the State are challenged in these three writ petitions. Insofar as the first of the above mentioned two conditions are concerned, it is the subject matter of challenge in WP (C) No. 2103/07 and WP (C) No. 4340/06. Insofar as the second of the above mentioned two conditions is concerned it is the subject matter of challenge in WP (C) No. 2086/07.
6. The petitioners have challenged these stipulations essentially on the ground that the stipulations mentioned above are arbitrary and also violative of Article 14 of the Constitution of India. It is submitted that by the above mentioned stipulation demanding pass in the subjects specified above the State has created an artificial classification between those students who passed the qualifying examination and secured 60% of the marks in the specified subjects. In so far as the stipulation of minimum of 60% of marks in the qualifying examination mentioned above is concerned, it is challenged on the ground that such a stipulation is beyond the competence of the State as it is opposed to the standards specified by the Medical Council of India. These questions and certain ancillary issues are required to be examined in these writ petitions. But, before we proceed to examine these questions a preliminary objection raised by Mr. D. Saikia, learned State Counsel appearing for the respondent State is required to be dealt with.
7. Mr. Saikia, learned State Counsel raised a preliminary objection that the petitioners have not impleaded the Medical Council of India as a party respondent in any one of these writ petitions and, therefore, these writ petitions are to be dismissed in limine on the ground of non--joinder of necessary party. In support of his submission the learned Counsel relied upon the judgment of the Supreme Court reported in (2005) 12 SCC 626 : Medical Council of India v. Naina Verma and Ors. It was a case where the High Court while allowing the writ petition by order dated 28.11.03 directed that the writ petitioner be admitted to the MBBS Course as a consequence of which the successful writ petitioner had to be admitted in the medical course in the month of January, 2004. The factual details and the legal controversies of the case are not relevant or necessary for the present purpose. It is on this background the Supreme Court held that such a direction to admit a student into the medical course by the High Court is contrary to the principles laid down by the Supreme Court in ; Medical Council of India v. Madhu Singh. While coming to such a conclusion the Supreme Court observed as follows:
7. The situations brought above by the various orders of the High Court would not have occurred, had the High Court in compliance with the directives of this Court, also ensured that the Medical Council was made a party before passing any such order relating to admissions in the medical courses.
We are unable to agree with Mr. D. Saikia, learned State Counsel that the Supreme Court laid down in the said decision that as a matter of rule, wherein admission to the medical courses are involved, the Medical Council of India is necessary party irrespective of the issues involved in the case. We are of the opinion that the observations made in Paragraph--7 are not ratio decidendi of the appellate decision but are observations made in the factual context of the case by the Supreme Court.
8. As we have already noticed, the issues which are required to be considered in these three writ petitions, in our opinion, can be decided even in the absence of the Medical Council of India, which is not a party to the litigation. Neither any relief is sought against the Medical Council of India nor the constitutionality of the impugned provisions depend upon the opinion of the Medical Council of India. The constitutional validity of the provisions is to be decided on the basis of an independent legal principle.
9. Before we proceed to examine the issues it would be profitable to understand the purpose behind the conduct of Common Entrance Examination for the various courses referred to above and also the purpose behind the Rules and Regulations which regulate the conduct of such Common Entrance Examination, more particularly the impugned stipulations.
10. Indisputably, the opportunities for undergoing training in any professional courses, be it medicine or engineering etc. are limited in number when compared to the number of aspirants. Necessarily that involves a process of choosing some of the many aspirants. Where the State undertakes the responsibility of imparting education in such professional courses, obviously the State is required to select the best of the available candidates, subject, of course, to its constitutional obligations to make a special provision for the constitutionally protected classes like SC/ST etc. with which aspect of the matter we are not concerned in these three writ petitions.
11. Necessarily such a process of identification of the best among the many competitors involves a process of filtering out the less suitable. It is for the said purpose the entrance examination, such as the one in dispute here, is conducted.
12. The authority of the State to regulate by law various aspects of admission is to be found in Entry 25 of List III (Concurrent List) of the 7th Schedule to the Constitution of India. The entry reads as follows:
25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 or List I; vocational and technical training of labour.
13. The very fact that such an entry is to be found in List III (Concurrent List), indicates that it is the area where both the Parliament and each of the State Legislatures are simultaneously vested with the legislative competence to regulate the activity of education, which by definition includes medical education and technical education. Apart from the limitation on the competence of the State Legislature, with reference to the subject matter enumerated in the Concurrent List of the 7th Schedule, as specified under Article 254 of the Constitution of India, the entry itself expressly limits the amplitude of the legislature field by making the same subject to the provisions of entries 63, 64, 65 and 66 of List 1.
Entry 66 of List 1 (Union List) reads as follows:
66. Co--ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
14. In exercise of the power under Entry 66 of List I the Parliament made the Indian Medical Council Act, 1956. One of the responsibilities entrusted to the Medical Council, created Under Section 3 of the above mentioned Act, is to prescribe the minimum standards of medical education. Such a responsibility is entrusted to the Medical Council of India Under Section 19A of the said Act, the relevant portion of which reads as follows:
19A. Minimum standards of medical education--(1) The Council may prescribe the minimum standards of medical education required for granting recognized medical qualifications (other than post--graduate medical qualifications) by Universities or medical institutions in India.
15. The scope and authority Under Section 19A of the Medical Council of India Act the amplitude insofar as it pertains to medical education vis-a-vis the legislative competence of the State legislature under Entry 25 of the List III (Concurrent List) was elaborately considered by the Supreme Court in : Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. In paragraph 35 of the said judgment the Supreme Court held as follows:
The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III.
Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3.1.1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows:
25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63,64,65 and 66 of List I; vocational and technical training of labour.
Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows:
66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
In substance, the Supreme Court held that the authority of the State to regulate the activity of education, including medical education or technical education, is subject to the limitations, if any, imposed by the appropriate law made by the Parliament in exercise of the legislative authority entrusted under any one of the four entries of List I referred to in Entry 25 of the List III. The Supreme Court held that 'norms of admission can have a direct impact on the standards of education. Therefore, it is also an aspect amenable to the regulatory authority of the Parliament under Entry 66 of List I'. (Para 36 of Preeti Srivastava's case)
16. In exercise of the power Under Section 19 A of the Act, the Medical Council of India made certain regulations in the year 1997 which were published in Part III, Section 4 of the Gazette of India and the relevant provision insofar as the issue on hand is concerned reads as follows:
Procedure for selection to MBBS courses shall be as follows:
1. In case of admission on the basis of qualifying examination under Clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in the Clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes. Scheduled Tribes or Other Backward classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above.
17. The learned Counsel for the petitioners, therefore, argued that in view of the stipulations by the Medical Council of India of only a minimum of 50% marks at the qualifying examination the respondent State lacks the competence to prescribe a different minimum qualifying mark, which we have already noticed is 60%. It is also the submission that the regulations of the Medical Council of India are silent about the requirement of clearing the subjects of Physics, Chemistry etc., referred to earlier, in one go and, therefore, the stipulation of the State of Assam making eligible only those candidates who clear the above mentioned subjects in one go to appear at the Common Entrance Examination is inconsistent with the scheme of the regulation made by the Medical Council of India.
18. For the sake of convenience, we wish to deal with the second of the issues identified, i.e., the challenge regarding stipulation of a higher benchmark, i.e. minimum of 60% of marks at the qualifying examination. In our view, the issue is no more res integra. In : Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. the issue was considered. In paragraph 36 of the said judgment the Supreme Court held:
a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education.
19. Mr. A.B. Choudhury, learned senior counsel for the petitioner relied heavily on a statement occurring in paragraph 52 of the same judgment in support of his submission. In paragraph 52 of the judgment the Supreme Court held:
These regulations, therefore, are binding and the States cannot, in exercise of power under entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon the regulations framed by the Medical Council of India.
20. In our opinion, the said statement requires a careful examination in the context of the discussion preceded in the said judgment. Two questions were raised before the Supreme Court in : Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. Firstly, whether the prescription of the norms of admission can be a part of the authority of the Parliament under Entry 66 of List I of the 7th Schedule to the Constitution and secondly, when the parliament or a body, created by the law of the Parliament, prescribes the norms of admission whether the State still have the liberty to deal with that aspect of the matter and prescribe a different standard than the one stipulated in exercise of power under entry 66 of List I. The Supreme Court categorically declared that the norms of admission are certainly an aspect of the regulatory power available to the Parliament under Entry 66 of List I. Coming to the second question the Supreme Court considered the various decisions previously rendered by it which held that it is for the State to prescribe the norms of admission and also took note of three earlier judgments of the Supreme Court in : Ajay Kumar Singh v. State of Bihar : State of M.P. v. Nivedita Jain and : Post Graduate Institute of Medical Education & Research v. K.L. Narasimhan, which held that on the face of the prescriptions made by the Medical Council of India, in exercise of power under Entry 66 of the List I of 7th Schedule, the States are devoid of the authority to make any further prescription with reference to the admission into medical courses. The Supreme Court in para 48 of the judgment expressly disagreed with the conclusion reached in the abovementioned three judgments and affirmed the view taken in three other judgments referred to therein to the effect that the States would be competent to lay down any additional or further qualifications, which are not in conflict with the regulations made under Entry 66 of the List I. In paragraph 45 of Preeti Srivastava's case the Supreme Court noted that in three earlier cases decided by the Supreme Court in : Ajay Kumar Singh v. State of Bihar . State of M.P. v. Nivedita Jain and : Post Graduate Institute of Medical Education & Research v. K.L. Narasimhan, 'the Court said that any additional or further qualifications which the State may lay down would not be contrary to Entry 66 of List I since additional qualifications are not in conflict with the Central regulations but are designed to further the objective of the Central regulations which are to promote proper standards'. It is in the background of this discretion the content of Paragraph 52 and the statement relied upon by Mr. A.B. Choudhury is required to be understood.
21. We are of the opinion that the Supreme Court never laid down in Preeti Srivastava's case (1999) 7 SCC 120 that the States are precluded from laying down norms of admission prescribing a standard higher than the one --stipulated by the Medical Council of India in the context of admission to the medical courses, In fact, in a later case : State of T.N. and Anr. v. S.V. Bratheep (Minor) and Ors. the same question arose in the context of prescription made by the All India Council of Technical Education (AICTE), a statutory body created under an enactment of the Parliament, once again in exercise of the power under Entry 66 of List I of the 7th Schedule. The said body prescribed the minimum qualification required for securing admission into the engineering courses, the State of Tamil Nadu prescribed higher minimum qualification than the one prescribed by AICTE. Dealing with the challenge, similar to the one on hand, the Supreme Court held:
9. Entry 25 of List HI and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by AICTE. It is no doubt true that AICTE prescribed two modes of admission--one is merely dependent on the qualifying examination and the other, dependant upon the marks obtained at the common entrance test. If higher minimum is prescribed by the State Government than what had been prescribed by AICTE, can it be said that it is in any manner adverse to the standards fixed by AICTE or reduces the standard fixed by it? In our opinion, it does not. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.
22. In view of the above discussion and on the authority of the abovementioned two decisions of the Supreme Court, we do not find any substance on the submission made by the learned Counsel insofar it pertains to the challenge of a higher minimum qualification prescribed by the respondent State.
23. Coming to the first issue, Mr. N. Dutta, learned senior counsel for the petitioner argued that the prescription creates an artificial classification among the students, who otherwise form a homogenous class who obtained more than 60% of the marks in the specified subjects at the qualifying examination. The impugned prescription insofar it prescribes that the students should have secured the said minimum qualifying mark in the specified papers in one go carves out a separate class of students, though in all other aspects they are similarly situated to the other students who secure the said minimum qualifying marks. The learned Counsel further submitted that such a classification has no rational nexus with the purpose, if any, sought to be achieved by the State by such classification.
24. Mr. D. Saikia, learned Counsel appearing for the State submits that the purpose of such a prescription is two fold--(1) to identify the best of the available candidates for imparting medical or technical education, essentially for the progress of the State of Assam and (2) such a classification, even otherwise, is not meant for any hostile discrimination of those students who fall in the category to which the petitioners belong, but it is a mode of filtering out the most suitable candidates from out of the large number of eligible candidates having regard to the limited number of seats available in the State of Assam. In fact, in the affidavit dated 20.2.07 filed on behalf of the respondent No. 2 at page 3 it is stated-
The rule has been enacted with sole intention of providing a sort of filter to separate out the meritorious who shall be eligible to sit for MBBS/BDS entrance examination.
The State obviously believes, as it professes in the said affidavit, that 'student who could not pass in the same sitting are less meritorious than the students who pass in the same sitting.'
25. A great deal of arguments on the question of appropriateness of the belief of the State that those students who could not secure the minimum qualifying mark in the relevant papers in one go are less meritorious than those students who could clear those papers in one go. It is further submitted by Mr. N. Dutta, learned senior counsel for the petitioner that even assuming, for the sake of argument, that such belief of the State is justified, the stipulation would not any way achieve any legitimate purpose of the State in view of the fact that of the available seats in the abovementioned courses 15% of the seats are required to be filled up by the students allotted by the Medical Council of India which, in turn, also conducts a Common Entrance Examination on All India basis where eligibility criteria for appearing in the entrance examination is only 50% of marks in the same specific subjects at the qualifying examination. The learned Counsel, therefore, submitted that notwithstanding the stipulation by the State of Assam of a higher qualifying mark, at least some of the students of Assam along with some others who secure only 50% of the marks in the specified subjects at the qualifying examination also get an opportunity of securing a seat in the medical course in the medical colleges of Assam by virtue of their success in the entrance examination conducted by the Medical Council of India. We see some force in the submission made by Mr. Dutta in this regard, but in our view it does not necessarily result in conclusion that the prescription made by the respondent State is illegal.
26. The legality and constitutionality of any law does not depend upon the beliefs of the Executive. Their legality is required to be decided on the touchtone of independent norms. Whatever be the correctness of the views of the State of Assam regarding the relative merits of those candidates selected through the process of selection, contemplated under the regulation in question or through the process of selection conducted by the Medical Council of India, if we examine the impugned stipulation from the point of view that it is one mode of filtering out for identifying the most suitable and meritorious candidates for imparting medical or technical education, we cannot legally find fault with the criteria adopted by the State in disqualifying those candidates who could not secure the minimum qualifying mark of 60% in the specified subjects in one go. The fact remains that such students form a sub-class from out of the whole class of students who could secure the same minimum qualifying mark in one go. Necessarily it leads us to the conclusion that those students who secure the minimum qualifying mark in one go are more suitable for the reason that they have the ability to take greater academic pressure when compared to the other class of students. In that view of the matter the impugned stipulation, in our view, cannot be classified as a wholly illegal stipulation and violative of Article 14 of the Constitution of India.
For the foregoing reasons we do not see any merit in these writ petitions. All the three writ petitions are, therefore, dismissed but in the circumstances. No costs.