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Madhya Pradesh High Court · body

2000 DIGILAW 1165 (MP)

Yashwant Kumar Bhandole v. State Of M. P.

2000-10-19

DIPAK MISRA

body2000
ORDER : The factual matrix, the questions of law involved, the nature of rights that warrant adjudication in this batch of writ petitions being similar it was heard together and is disposed of by this common order. It is pertinent to state here that some writ petitions relate to admission to post graduate medical courses where in the process of revaluation (which has arisen like a phoenix after publication of results) the negative marking has been crucified in respect of Scheduled Castes and Scheduled Tribes and in other bunch of writ petitions, in admission to M.B.B.S. and other courses negative marking has been given a burial as far as Scheduled Tribe candidates are concerned. Thus, in essence, the writ petitions are in two compartments but basic challenge being the same I have thought it appropriate to pass a common order. For the sake of clarity and convenience, the facts in W. P. No. 5553/2000 are adumbrated herein. 2. Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioners have prayed for issuance of appropriate writ for quashment of the decision taken by the State Government, vide Annexure P/1 dated 7-9-2000 which relates to the Pre Post Graduation admission Test. 3. To understand the contours of controversy it is essential to narrate the antecedents of the case as there has been an enormous effort by the State Government to do justice, equitable and laudable, as the learned Advocate General for the State, Mr. V. K. Tankha would like to put it, to the Scheduled Tribes which consists of a considerable portion of the population of the State. The State of M. P. by order dated 17-6-1996 prescribed qualifying marks of 20%, 15% and 40% for Scheduled Castes, Scheduled Tribes and Other Backward Classes respectively for the admission into Post Graduate Medical Education. The defensibility of the aforesaid action was considered by the Apex Court in the case of Dr. Preeti Shrivastava and another vs. State of M. P. and others, AIR 1999 SC 2894 wherein the Apex Court set aside the decision of the State Government and observed that questions as regards the lowering of minimum qualifying marks for reserved categories at the Post Graduate level of Medical Education should be decided by the Expert Body i.e. Medical Council of India. While leaving the matter to the Expert Body their Lordships observed that minimum qualifying marks can be lowered for the reserved category candidates but while doing so there should not be a wide disparity between minimum qualifying marks for the reserved category candidates and the minimum qualifying marks for the General category candidates at the Post Graduate level. The Apex Court further directed that pending consideration of the questions by the Medical Council of India the State Government should follow the norms laid down by the Medical Council of India for lowering the marks for admission to the under graduate subjects in medical course at the Post Graduate level as a temporary measure. Before the Medical Council of India could take a decision the time became ripe to initiate process for selection for admission to Post Graduate courses for the Session 2000-2001. The State Government published M. P. Medical and Dental Post Graduate Entrance Examination Rules, 2000 (hereinafter referred to as 'the Rules'). Clause 3(III)(a) of the Rules prescribed reservation to Assistant Surgeon working under and sponsored by the Government, belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Clause (III)(b) of the Rules stipulated that as per the decision of the Supreme Court of India minimum qualifying marks for reserved category shall be forty percent. The said Rule further provided that in case the minimum qualifying marks (cut off percentage) is changed by Government of India/MCI with reference to Hon'ble Supreme Court then same would be applicable. Clause 3(IX) of the Rules provided that candidates of General Category securing more than 50% marks shall be included in the merit list and Reserved Category (SC, ST, OBC) securing minimum qualifying marks of 40% shall be placed in the merit list. It was also provided therein that seats remaining unfilled due to non-availability of eligible reserved category candidates, the said seats shall be reverted to the General category. Examination was held in pursuance of the said Rules on 5-3-2000 and results were published on 6-4-2000. After the results were published counselling began and it was found that adequate number of candidates belonging to Scheduled Castes and Scheduled Tribes had not obtained minimum qualifying marks of 40%. Examination was held in pursuance of the said Rules on 5-3-2000 and results were published on 6-4-2000. After the results were published counselling began and it was found that adequate number of candidates belonging to Scheduled Castes and Scheduled Tribes had not obtained minimum qualifying marks of 40%. It is pertinent to State here that 492 seats were available for various Post Graduate faculties and out of those 55 and 90 seats were kept reserved for Scheduled Castes and Scheduled Tribes candidates respectively, but in these categories only 21 and 10 candidates could secure 40% marks. At this juncture the Chief Minister of the State made a request to the Prime Minister to intervene and to change the qualifying percentage of marks to 35% for the General Categories and 25% for reserved categories. A similar letter was addressed to the President of the Medical Council of India. Awaiting response of these letters the State Government by its letter dated 22-5-2000 decided that the seats reserved for the members of the reserved categories should remain vacant and it may not be filled up and the said seats should be filled up only after the instruction is received from the Medical Council of India and the Government of India. The request made by the Chief Minister for relaxing the qualifying marks for admission was placed for consideration before the Executive Committee of the Medical Council of India and the Executive Committee of the Council did not accede to the request made by the State Government. The resolution of the Executive Committee reads as under :- "The Executive Committee perused the letter received from the Hon'ble Chief Minister of State of M. P., Shri Digvijay Singh requesting the Council that the percentage of marks as qualifying marks which is fixed at 35% for general category and 25% for reserved category instead of 50% and 40% may be reviewed and re-fixed by the MCI in the interest of backward classes of the State. The above mentioned request on behalf of the State of Madhya Pradesh was examined and considered by the Executive Committee in light of the judgment of the Hon'ble Supreme Court in the case of Dr. Preeti Shrivastava vs. State of Madhya Pradesh. The decision of the Council as per the direction of the Hon'ble Supreme Court in the case of Dr. Preeti Shrivastava vs. State of Madhya Pradesh. The decision of the Council as per the direction of the Hon'ble Supreme Court in the case of Dr. Preeti Shrivastava is still in process and is yet to be finalised. It had been clearly stipulated by the Hon'ble Supreme Court in the judgment in the case of Dr. Preeti Shrivastava but till such time the Council decides the issue finally as directed by the Hon'ble Supreme Court the percentage of 50% for general category candidates and 40% for Scheduled Castes category candidates as is being followed for admission in undergraduate (MBBS) course, shall be followed for admissions to postgraduate courses. In view of this clear observation/direction of the Hon'ble Supreme Court, the Executive Committee of the Council does not find itself in a position to accept the request on behalf of the State of Madhya Pradesh. This may be informed to the State Government accordingly." 4. At this juncture it is worthwhile to mention that as the State Government had taken a decision to postpone the admission some of the general category candidates approached this Court in W. P. Nos. 3199/2000 and 3316/2000 wherein prayer was made to quash the decision dated 22-5-2000 taken by the State Government. Before the learned Single Judge it was contended that if minimum qualifying marks for reserved category candidates is fixed as per the present norms a large segment of the State's population would be deprived of the benefit. After hearing the learned counsel for the parties C. K. Prasad, J. held as under :- "Having appreciated the rival submissions, I do not find any substance in the submission of the learned Advocate General. After the judgment was rendered by the Supreme Court on 10th August, 1999 the State Government published the Rules in which it has categorically provided that minimum qualifying marks for the reserved category candidate would be 40% and seats which remain unfilled on account of non-availability of sufficient number of candidates securing minimum qualifying marks of the reserved category, same would be reverted to the general category candidate. It is common ground that the Medical Council of India has not taken final decision as regards to the qualifying marks for admission at the postgraduate level of medical education and further the request made by the State Government to lower the qualifying marks to 25% for reserved category candidate has been turned down by the Medical Council of India. In such a situation, respondents cannot be allowed to postpone the process of selection and its completion indefinitely. In my opinion, so long the Medical Council of India does not take final decision the direction of the Supreme Court to follow the norms laid by the Medical Council of India for undergraduate course has to be followed. However, I would like to observe that Medical Council of India and the Government of India shall be well advised to take decision immediately, so as to avoid any confusion." The aforesaid decision of the learned Single Judge was challenged in a Letters Patent Appeal and the Division Bench after referring to the decision rendered in the case of Dr. Preeti Shrivastava (supra) held as under :- "In light of the aforesaid decision of the Supreme Court, the Medical Council of India has to take decision and till it is taken, the percentage of qualifying marks already fixed by the Medical Council of India would be applicable for admission to the undergraduate (MBBS) medical courses and to the post-graduate level courses also. With this background, the direction sought by the State cannot be granted and is liable to be rejected. As per admission Rules unfilled seats of reserved categories are to be filled from general category candidates. The admissions have to be completed by 2nd July, 2000. Therefore, direction issued by the learned Single Judge is absolutely correct and is hereby maintained." 5. It is pertinent to note here the Division Bench directed that admission to General Category candidates against the seats which remained unfilled from the reserved category candidates should be given before 2nd July, 2000. 6. After the matter was finally put to rest unfilled seats were reverted to the General Category candidates and counselling for the General Category candidates was also held. After the said counselling 128 seats remained unfilled. As averred in the writ petition the said seats are to be filled up by the General Category candidates whose names find place in the Waiting List. After the said counselling 128 seats remained unfilled. As averred in the writ petition the said seats are to be filled up by the General Category candidates whose names find place in the Waiting List. At this juncture the State Government issued a direction on 7-9-2000 wherein it directed to the Chairman, Professional Examination Board as under :- The said order and similar order in respect of P.M.T. Examination are sought to be challenged in the present batch of writ petitions. It is averred in the writ petition that all the seats which are vacant are to be filled up by the candidates belonging to the General Category and a device cannot be adopted to do away with the negative marking in respect of the Entrance Test which was held six months earlier and in any case, such a procedure meant only for certain category of candidates to the lower standard of Entrance Test which is not permissible in law. It is putforth that the candidates who had not been eligible to be admitted to the Post Graduate Courses are being made eligible by this artificial and arbitrary method of revaluation which has no justification. It has also been set forth that negative marking is a mode of valuation and the same has been in practice since the inception of the Pre Post Graduate Entrance Test and it has also been adopted in All India Post Graduate Entrance Examination and it cannot be done away by the State Government in this novel manner. 7. A return has been filed contending, inter alia, that 128 house jobs were converted to Post Graduate/Diploma seats and in order to fill up these seats by reserved category candidates upto the extent of their numbers in relation to the percentage of reservation for them the State Government has taken a decision to do away that the negative marking system for Scheduled Castes and Scheduled Tribes candidates in the Pre-Entrance Test in Medical and Dental Post Graduate Course. It is putforth in the return that the State Government has taken the aforesaid decision keeping in view the articles 14 and 15 of the Constitution of India to provide equal as well as meaningful education opportunities to the members belonging to the Scheduled Castes and Scheduled Tribes so that the said segment of the society also gets equal chance to unfold and unfurl their faculty potentially under the propitious environment. It is further pleaded that such a step is towards the process of meaningful equalisation and this has been done to abridge the gap and rectify the imbalance without compromising with the merit or the minimum qualifying marks i.e. 40% provided for Scheduled Castes and Scheduled Tribes candidates. According to the answering respondents the petitioners who belong to the General Category, cannot claim as a matter of right to secure admission against the so-called unfilled seats under the quota earmarked for Scheduled Tribes and Scheduled Castes. It is further averred that by doing away with the negative marking there has been no relaxation of qualifying marks so as to offend the Article 14 of the Constitution as the relaxation is only in the Rules is to change the modality of selection of candidates belonging to the Scheduled Castes and Scheduled Tribes categories. In the counter affidavit reliance has been placed under Article 162 of the Constitution to show source of power to do away with this kind of negative marking. The conditions prevalent in State of M. P. has been highlighted in various paragraphs of the return. 8. I have heard Mr. N. S. Kale, learned senior counsel along with Mr. Abhijit Bhowmik for the petitioners and Mr. V. K. Tankha, learned Advocate General and Mr. S. K. Seth, learned Additional Advocate General for the State. It is submitted by Mr. Kale, that once the examination has been held and results thereof have been published the State Government cannot take recourse to do away with negative marking as that would be contrary to the norms laid down in the examination Rules and the very nature of it, is an anatheme to competitive examinations. Learned senior counsel has also canvassed that such a step is contrary to the decision rendered in the case of Dr. Preeti Shrivastava (supra). Learned counsel appearing for the petitioners in other writ petitions have also made similar submissions. Mr. Learned senior counsel has also canvassed that such a step is contrary to the decision rendered in the case of Dr. Preeti Shrivastava (supra). Learned counsel appearing for the petitioners in other writ petitions have also made similar submissions. Mr. Tankha, learned Advocate General for the State has contended that the State Government has done away with the negative marking to achieve the constitutional goal and hence, its action cannot be faulted. It is his further submission that the Professional Examination Board is bound to obey the commands of the State Government and till the seats are filled up the State Government is at liberty to change the mode of valuation. It has been canvassed by him that the Professional Examination Board has no authority to declare a select list of candidates as the State Government can intervene at any point of time and hence, the petitioners have no right to claim that they should be called for counselling. Learned Advocate General has further proponed that by change of method of marking the State has not violated any law governing the field and the question of promissory estoppel does not arise. The learned Advocate General has relied on the decisions rendered in the cases of Indira Sawhney vs. Union of India, 1992 Supp (3) SCC 217; Unikrishnan vs. State of Andhra Pradesh, AIR 1993 SC 2178 ; Dr. Preeti Shrivastava vs. State of M. P. AIR 1999 SC 2894 ; Ashok Kumar Tripathi vs. Nivedita Jain, AIR 1981 SC 2045 ; State of M. P. vs. Indian Medical Council, (1981) 4 SCC 516 ; Maharashtra State Board of SHSE, AIR 1984 SC 1543 ; Rajesh Kumar Verma vs. State of M. P. AIR 1995 SC 1421 ; State of M. P. vs. Rakesh Menon, (1995) 2 SCC 134 ; Ambesh Kumar vs. Principal, AIR 1987 SC 400 ; Deeptimayee Behra vs. State of Orissa, AIR 1985 Orr. 249; Asif Hameed vs. State of J & K, AIR 1989 SC 1899 ; Seema vs. Rani Durgawati Vishwavidyalaya, AIR 1989 MP 53 ; Ajay Kumar Singh vs. State of Bihar, (1994) 4 SCC 401 ; P. G. Institute of Medical Education and Research vs. Narsimha, (1997) 6 SCC 283 ; Alembic Chemical Works vs. Workmen, AIR 1961 SC 647 ; Dr. Umakant vs. Bhikala Jain, (1992) 1 SCC 105 ; Nishant Puri vs. State of Himachal Pradesh, (1999) 1 SCC 126 ; N. Ramanath Pillari vs. State of Kerala, AIR 1973 SC 2641 ; Deepak vs. State of Bihar, AIR 1982 Patna 126; Rajeev Kapoor vs. State of Haryana, AIR 2000 SC 1476 ; and University of Jammu vs. Mohd. Akram, AIR 2000 J & K 61, to substantiate his contentions, I would be referring to a few at the relevant place. 9. To appreciate the rival submissions raised at the Bar, I think it apposite to refer to the relevant Rules. Rule No. 1 .22 describes the nature of test which reads as under :- "NATURE OF TEST. 1.22.1 THE TEST : The Entrance Test shall be through objective type questions only, where, for each question four plausible answers/responses will be given, out of which only one will be correct. The candidate has to select the correct answer by darkening the corresponding bubble (A or B or C or D) on the OMR Answer Sheet. 1.22.2 MARKS AND TIME ALLOTTED FOR QUESTION PAPERS: The question papers of the subject concerned in the entrance test for admission to (i) MD/MS and post graduate diploma would contain 150 questions of 3 marks each. Duration of the test would be 2 hours 15 minutes and (ii) to MDS it would contain 100 questions of 3 marks each and the duration of the test would be 1 hour 15 minutes. 1.22.3 NEGATIVE MARKING : One mark shall be deducted for each incorrect answer. Darkening more than one bubble (MULTIPLE-MARKING) to a question, if read by the OMR machine will be deemed to be a wrong answer and here too ONE MARK WILL BE deducted." At a bare glance of the Rules it becomes clearly perceptible that it provides for negative marking. It is apposite to mention here that it is not disputed at the Bar that if the seats reserved for Scheduled Castes and Scheduled Tribes candidates are not filled up by that category the same would be filled up by the candidates belonging to the General Category who would be featuring in the Waiting List as per the merit list prepared by the Board. The questions that arise for consideration is whether the State Government is justified in issuing of order dated 7-9-2000 as per Annexure P-1, or the same is contrary to law. Mr. Tankha, learned Advocate General for the State referred to the decision rendered in the case of Nivedita Jain (supra) and contended that though the ratio of the aforesaid decision has not been approved in the case of Dr. Preeti Shrivastava (supra), various observations made therein have not been specifically over-ruled. The Apex Court in the aforesaid case was dealing with the executive order completely relaxing the conditions in respect of Scheduled Castes and Scheduled Tribes candidates. Their Lordships in the case of Dr. Preeti Shrivastava (supra) held as under :- "But we cannot agree with the observations made in that judgment to the effect that the process of selection of candidates for admission to a medical college has no real impact on the standard of medical education; or that the standard of medical education really comes into the picture only in the course of studies in the medical colleges or institutions after the selection and admission of candidates. For reasons which we have explained earlier, the criteria for selection of candidates have an important bearing on the standard of education which can be effectively imparted in the medical colleges. We cannot agree with the proposition that prescribing no minimum qualifying marks for admission for the Scheduled Castes and the Scheduled Tribes would not have an impact on the standard of education in the medical colleges." Their Lordships also observed that it cannot be said that the Judgement in Nivedita Jain's case (supra) is approved in all its aspects in the case of Indra Sawhney (supra). To appreciate the submissions of Mr. Tankha, learned Advocate General for the State I have carefully gone through the law laid down in the case of Nivedita Jain (supra) and to the extent it has been overruled in Dr. Preeti Shrivastava (supra), I am of the considered opinion that the said decision does not render much assistance to the learned counsel for the State. He has placed reliance on the decision rendered in the case of Deepak (supra) to highlight that the prospectus for admission to Post Graduate Courses not providing for reservation for Scheduled Castes and Scheduled Tribes candidates and the reservation introduced after examination for selection is not invalid. He has placed reliance on the decision rendered in the case of Deepak (supra) to highlight that the prospectus for admission to Post Graduate Courses not providing for reservation for Scheduled Castes and Scheduled Tribes candidates and the reservation introduced after examination for selection is not invalid. Their Lordships in that case were dealing with the concept of promissory estoppel and the constitutional mandate. In my considered view the concept of promissory estoppel does not arise in the present case for what is going to be stated later on. On a bare reading of the aforesaid decision, I am of the humble opinion the same does not render much assistance to the petitioners. The learned Advocate General has also relied on the decisions rendered in the cases of Rajesh Kumar Verma (supra) and Rakesh Menon and another (supra) to show that in those cases action of the State Government whereby minimum qualifying marks in General English for Scheduled Castes and Scheduled Tribes candidates were reduced to fill up the seats for the reserved quota was approved. I have carefully perused the aforesaid decision but I am of the considered opinion that the law laid down therein are not applicable to the present case. Mr. Tankha has also placed heavy reliance on the decision rendered in the case of Rajeev Kapoor (supra). In the aforesaid case their Lordships held that selection and admission to Post Graduate Degree and Diploma Course in Medicines need not only be in terms of stipulations contained in the prospectus and the Government has authority to issue any direction laying down any criteria other than one contained in the prospectus. In the said decision the Apex Court was concerned with admission to Post Graduate Degree and Diploma Course in Medicines. Their Lordships were dealing with the additional criteria provided for Haryana Civil Medical Services candidates in respect of reserved seats made for them and in that context expressed thus :- ".....................The prospectus as well as the orders of the Government in our view has to be construed in such a manner that inter se merits of the service candidates are properly assessed on the basis of their credentials and performance in service and not merely of theoretical knowledge of the subject as in the case of non-service candidates belonging to the other categories. The construction placed by the High Court, if accepted may result in discrimination on account of applying different criteria of total marks for open candidates and in service candidates without noticing the distinguishing features relevant for the purpose of assessment of merit in the case of HCMS candidates. We find no reason or justification to allow any deviation from the method of assessment uniformly followed in all the previous years for such selection. For all the reasons stated above, we have no hesitation in holding that the High Court committed a serious error in this regard which vitiates its judgment and the same is accordingly set aside. We hold that the merits of the HCMS candidates are required to be adjudged in terms of criteria contained in the Government orders noticed above and the selections can be made for admission against the reserved seats, as per the determination of merit by the Selection Committee constituted for the purpose." In view of what has been stated above, I am of the considered opinion that the said decision is not applicable to the facts of the present case. 10. Now I shall advert to the justifiability of the steps taken by the State Government in doing away with the negative marking. Concept of negative marking has been introduced in the Rules to test the ability and the brilliance of candidates in the real sense of the terms. This mode is provided so that a student does not venture to answer questions by using his faculty of intuition, guess or conjecture, Certitude and exactitude are two pillers on which the marking system is based. The whole some purpose is to maintain and sustain a certain standard. Rigours of standard may not warrant a test by the Kent's concept of rigorism but certainly it visualises a pattern that imprisons as appreciable standard. In this context I may usefully refer to the case of Dr. Preeti Shrivastava (supra) wherein their Lordships in paragraph 57 have held as under :- "57. In the case of Medical Council of India vs. State of Karnataka (1998) 6 SCC 131 = AIR 1998 SC 2423 a Bench of three-judges of this Court has distinguished the observations made in Kumari Nivedita Jain, AIR 1981 SC 2045 (supra). Preeti Shrivastava (supra) wherein their Lordships in paragraph 57 have held as under :- "57. In the case of Medical Council of India vs. State of Karnataka (1998) 6 SCC 131 = AIR 1998 SC 2423 a Bench of three-judges of this Court has distinguished the observations made in Kumari Nivedita Jain, AIR 1981 SC 2045 (supra). It has also disagreed with Ajay Kumar Singh vs. State of Bihar, 1994 AIR SCW 2515 (supra) and has come to the conclusion that the Medical Council Regulations have a statutory force and are mandatory. The Court was concerned with admissions to the MBBS course and the regulations framed by the Indian Medical Council relating to admission to the MBBS course. The Court took note of the observations in State of Kerala vs. Kumari T. P. Roshana (1979) 1 SCC 572 at page 580 = AIR 1979 SC 765 at p. 771, to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an export body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualification or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the medical council to prevent sub-standard entrance qualifications for medical courses. These observations would apply equally to post graduate medical courses. We are in respectful agreement with this reasoning." It is also apposite to refer to paragraphs 58 and 59 : "58. The Regulations governing post graduate medical education already referred to earlier, provide for admission on the basis of merit. The Regulations, however, has not clearly spelt out whether there can or cannot be, any reservation for Scheduled Caste, Scheduled Tribes and/or Backward Class candidates at the stage of post graduate medical admissions. Whether such a reservation would impinge on the standards or not would depend upon the manner in which such reservation is made, and whether the minimum qualifying marks for the reserved categories are properly fixed or not. It is for the Medical Council of India to lay down proper norms in this area and to prescribe whether the minimum qualifying marks for the admission of students in the reserved category can be less than the minimum qualifying marks for the general category students at the post graduate level; and if so, to what extent. It is for the Medical Council of India to lay down proper norms in this area and to prescribe whether the minimum qualifying marks for the admission of students in the reserved category can be less than the minimum qualifying marks for the general category students at the post graduate level; and if so, to what extent. Even if we except the contention of the respondents that for the reserved category candidates also, there inter se merit is the criterion for selection, although for the reserved category of candidates lower minimum marks are prescribed, the merit which is envisaged under the Indian Medical Council Act or its Regulations is comparative merit for all categories of candidates. For admission to a post-graduate course in medicine, the merit criterion cannot be so diluted by the State as to affect the standards of post-graduate medical education as prescribed under the Regulations framed by the Indian Medical Council. It is for the Indian Medical Council to consider whether lower minimum qualifying marks can be prescribed at the post-graduate level for the reserved category candidates. We have already opined that the minimum qualifying marks of 20% as compared to 45% for the general category candidates appear to be too low. This would make it difficult for the reserved category candidates to bring their performance on a par with general category candidate in the course of post-graduate studies and before they qualify in the post-graduate examination. It is also necessary in public interest to ensure that the candidates at the post-graduate level have not just passed the examination, but they have profited from their studies in a manner which makes them capable of making their own contribution, that they are capable of diagnosing difficult medical conditions with a certain degree of expertise, and are capable of rendering to the ill, specialised services of a certain acceptable standard expected of doctors with specialised training." In paragraph 60 their Lordships have opined that the disparity in the minimum qualifying marks cannot be substantial. Thus, ratio of Dr. Preeti Shrivastava (supra) is that standard of examination has to be maintained and some logical standard has to be followed while giving admission to the medical courses. In this context, I may also refer to para 63 wherein their Lordships held as under :- "63. Thus, ratio of Dr. Preeti Shrivastava (supra) is that standard of examination has to be maintained and some logical standard has to be followed while giving admission to the medical courses. In this context, I may also refer to para 63 wherein their Lordships held as under :- "63. In the premises, the impugned Uttar Pradesh Post-Graduate Medical Education (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1997 and G. O. dated 7-6-1997 of the State of Madhya Pradesh are set aside. However, students who are already taken admission and are pursuing courses of post-graduate medical study under the impugned Act/G.O. will not be affected. Out judgment will have prospective application. Further, pending consideration of this question by the Medical Council of India, the two States may follow the norms laid down by the Medical Council of India for lowering of marks for admission to the under graduate and M.B.B.S. medical courses, at the post-graduate level also as a temporary measure until the norms are laid down. This however, will not be treated as our having held that such lowering of marks will not lead to a lowering of standards at the post-graduate level of medical education. Standards cannot be lowered at this level in public interest. This is a matter to be decided by an expert body such as the Medical Council of India assisted by its Post-Graduate Medical Education Committee in accordance with law." Mr. Tankha, learned Advocate General for the State has contended that policy of the process of negative marking is permissible because in that process the percentage meant for Scheduled Castes and Scheduled Tribes is not affected. In my considered view this is quite a unique way of introducing a novel proposition by which one overreaches the judgment of the Supreme Court. Their Lordships while stipulating that there should be minimum disparity, have taken into consideration the system of examination. The most interesting aspect that requires to mention here that some categories of students have been freed from the rigours and shackles of the negative marking. Equality of standard is to be adjudged keeping all things equal. Reservation of seats provided on the basis of a particular percentage of marks is quite different than providing a procedure in the evaluation process by which a class within a class is created without proper nexus. Equality of standard is to be adjudged keeping all things equal. Reservation of seats provided on the basis of a particular percentage of marks is quite different than providing a procedure in the evaluation process by which a class within a class is created without proper nexus. If negative marking is not allowed to stand the whole examination would loose its sacrosanctity and the discrimination between various categories of students would be writ large and may reach the level of reprehensibility. In my considered view it offends the equality clause enshrined under Article 14 of the Constitution. Adoption of this mode would not only be an anethema to the maintenance of the standard but also become a reflection of adamantine obstinacy to get something done which the law prescribes. That apart it would smother the rights which are inherent and inalienable of other categories of students. 11. Derogation in the field of maintenance of standard cannot be countenanced in the name of reservation. If the marking pattern is changed in respect of some categories of students the standard setforth in the case of Dr. Preeti Shrivastava (supra) would be frustrated and defeated. 12. Quite apart from the above whole scenario can be viewed from another angle. The Apex Court has held that an expert body like Medical Council of India is constituted to provide percentage of marks for the purpose of admission. Emphasis has also been laid on the manner and mode of carrying out an examination. If an examination is done and negative marking is done with in respect of some categories of students, the same will corrode the very basis of selection and eventually erode the purpose for which the examination is held. In its conceptual eventuality it would be like a balloon i.e. that goes up and never comes down. The Sixty-four million dollar question is that whether such a marking system should be allowed to stand scrutiny. The answer is an indubitable and emphatica 'No.' 13. Now I shall advert to deal with the Pre Medical Test which is held for admission to M.B.B.S. and other courses. The Sixty-four million dollar question is that whether such a marking system should be allowed to stand scrutiny. The answer is an indubitable and emphatica 'No.' 13. Now I shall advert to deal with the Pre Medical Test which is held for admission to M.B.B.S. and other courses. As far as the said test is concerned, as has been indicated earlier, negative marking has been done away in respect of Scheduled Tribe candidates as a result of which the Scheduled Tribe candidates have been declared qualified for their reserved seats which ordinarily would have given to Scheduled Castes. The State Government's direction is contained in Annexure-R-1 in W.P. No. 5559/2000. The said order reads as under :- The reason ascribed in the case of Post Graduate Examination would squarely apply to the case of M.B.B.S. and other courses, therefore, I need not dilate on that. Accordingly, the decision of the Government directing to do away with the negative marking is quashed. 14. In view of the aforesaid premises, the candidates who are in the "Waiting List" are to be called for counselling. They cannot be compelled to face the disgrace of crowned and discrowned. 15. Resultantly, the writ petitions are allowed and the State Government's decision to do away with negative marking for certain categories is quashed and as a necessary corollary the consequences arising out of the said action are also quashed. In the peculiar facts and circumstances of the case there shall be no order as to costs.