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2006 DIGILAW 1849 (PNJ)

Mohit Sharma v. State Of Punjab

2006-04-28

HEMANT GUPTA

body2006
Judgment Hemant Gupta, J. 1. The challenge in the present writ petition is to Clause 11(a) of the Notification dated 14.5.2003 whereby a physically handicapped candidate is required to obtain 50% qualifying marks for admission to MBBS/BDS course. 2. The petitioner applied for admission for MBBS/BDS Course through Pre-Medical Entrance Test-2003 under the reserved category of physically handicapped as having 40% disability i.e., shortening of one leg. The petitioner secured 356 marks out of 800 i.e., less than 50% marks required under Clause 11(a) of the Notification dated 14.5.2003. The said 50% marks in PMET are condition precedent for the general category students to seek admission in MBBS course. The case of the petitioner is that the minimum percentage of marks for reserved categories is 40% and, therefore, in respect of physically handicapped category also the marks should not exceed 40%. Such fixation of minimum percentage of marks is said to be illegal, arbitrary, discriminatory and violative of Article 14 and 15 of the Constitution of India. Clause 11(a) of the Notification dated 14.5.2003 reads as under: 11. (a) For admission to MBBS/BDS candidates must have come in the merit list prepared as a result of the entrance examination by securing not less than 50% marks in Physicals, Chemistry and Biology taken together in the competitive examination, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes or other backward classes the marks obtained in Physics, Chemistry, Biology taken together in competitive entrance examination be 40% instead of 50% as stated above. 3. It is the case of the petitioner that since all other reserved categories candidates are being considered having scored 40% marks in test, he is also required to be considered as eligible having secured 44.5% marks. Still further, it has been pointed that 17 seats are meant for physically handicapped out of which 6 are for persons who are orthopaedically handicapped but five seats are lying vacant. The petitioner has taken a stand that in case the petitioner is to complete with other general category candidates by securing 50% marks then there is no purpose for providing reservation for physically handicapped persons. 4. The petitioner has taken a stand that in case the petitioner is to complete with other general category candidates by securing 50% marks then there is no purpose for providing reservation for physically handicapped persons. 4. On behalf of the respondents, it is pointed out that in respect of candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes, the minimum marks required to be obtained in PMET-2003 are 40% whereas the candidates belonging to Open/General Category, Sports Category, Handicapped Category, Defence Category, Para Military Category and Freedom Fighter Category must obtain 50% marks. Still further, as per Clause 11(b) of the Notification, for admission to BAMS/BHMS course, the candidates are eligible if they have secured not less than 40% marks in PMET-2003, whereas for Scheduled Castes, Scheduled Tribes and Other Backward Classes, the minimum marks required are 35%. It has been further pointed out that the reserved categories of Scheduled Castes, Scheduled Tribes and Other Backward Classes are constitutionally protected candidates and are, thus, a class themselves and the provision of lower minimum marks is fully justified and valid in law. Such notification of the State Government prescribing minimum qualifying marks for admission is in tune with the Regulations framed by the Medical Council of India titled Regulations on Graduate Medical Education, 1997. The relevant Regulation 2(4)(ii) contemplates that admission shall be based on a competitive entrance examination based on merit. A candidate for admission to MBBS Course must have passed subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks in Physics, Chemistry and Biology competitive examination. Regulation 2(4)(ii) reads as under: In case of admission on the basis of competitive entrance examination under Clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and 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 Clause (2) of Regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in Physics, Chemistry, and Biology competitive examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes the marks obtained in Physic, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above. 5. Still further, it has been pointed out that there were 14 seats for the handicapped category in the MBBS course out of which three seats were reserved for blind persons, four seats for candidates with hearing impairment and seven seats were reserved for Orthopaedically handicapped persons. 6. The short question which arises for consideration of this Court in the present writ petition is whether a Orthopaedically handicapped persons can claim parity in respect of minimum marks in the Combined Entrance Test with the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes and that fixation of minimum marks for candidates belonging to such candidates can be interfered with by this Court. 7. Article 15(4) of the Constitution of India provides for special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. The special provision is an exception to the rule of equality enshrined under Articles 14 and 15(1) of the Constitution of India. A candidate who is physically disabled has been granted certain rights and protection with the enactment of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Admittedly, the petitioner suffers from disability as defined under the aforesaid Act. However, it is Chapter V of the said Act which enjoins an obligation upon an appropriate Government and the Local Authority in respect of education to the persons suffering from disability. However, Sections 26 to 31 forming part of Chapter V does not contemplate lowering of minimum marks for the persons having disability as defined under the Act. Therefore, it is apparent that there is neither any constitutional or statutory rights conferred on the person suffering from any disability to treat the said category at par with the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. In fact, had such benefit been granted, the same would have violated Articles 14 and 15 of the Constitution of India. 8. Hon ble Supreme Court has considered the question of admission to MBBS course and the regulations framed by the Medical Council of India relating to admission to MBBS course. In fact, had such benefit been granted, the same would have violated Articles 14 and 15 of the Constitution of India. 8. Hon ble Supreme Court has considered the question of admission to MBBS course and the regulations framed by the Medical Council of India relating to admission to MBBS course. In Medical Council of India v. State of Karnataka and Ors. it has been held that the regulations framed by the Medical Council of India have a statutory force and are mandatory. It has been held that Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus, there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical course. It was held to the following effect: ...The Court said that from the provisions of the Medical Council Act, it was apparent that the authority of the Medical Council extends to the sphere of maintaining proper medical standards in medical colleges or institutions necessary for obtaining recognised medical qualifications and by virtue of this authority, it may be open to the Medical Council to lay down the minimum educational qualification required for the students seeking admission into medical colleges. The Medical Council was authorised to prescribe minimum standards of medical education required for granting recognised medical qualification including standards of postgraduate medical education.... 9. The said observations were found to be equally applicable to Postgraduate medical education by the Constitution of Bench in Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors.. Still later in State of Punjab v. Dayanand Medical College and Hospital and Ors., it has been held by the Supreme Court that lowering of minimum qualifying marks to less than 50% in the entrance examination is illegal. In the said case, the State vide notification dated 5.1.2001 provided for admission to postgraduate medical course with less than 50% marks in the entrance examination. Such action was found to be contrary to the Regulation 9 of the Postgraduate Medical Education Regulations, 2000. In the said case, the State vide notification dated 5.1.2001 provided for admission to postgraduate medical course with less than 50% marks in the entrance examination. Such action was found to be contrary to the Regulation 9 of the Postgraduate Medical Education Regulations, 2000. It was held to the following effect: ...However, the Medical Council of India did not provide for any reservation in the Regulations; that it did not also prescribe as a separate percentage of minimum marks at the entrance test for postgraduate admissions for eligibility of candidates belonging to reserved category; that the silence on the part of the Regulations on these two material aspects leads to the irresistible inference that the Medical Council of India did not contemplate and provide for any reservations at the level of admission to postgraduate courses in any manner for the academic year in question; that the reservations made by the State Government in its notification dated 5.1.2001 not being based on the decision of an expert body such as the Medical Council of India with the Postgraduate Medical Education Committee mentioned in Section 20 of the Indian Medical Council Act, it is not in accordance with the law declared in Dr. Preeti Srivastava case and, therefore, the conclusion arrived at by the High Court on questions referred to above is correct; that the prescription of 40% marks at the entrance test for all candidates as against 50% marks at the entrance test prescribed by the Medical Council of India for all students in the proviso to Regulation 9(2) is ultra vires and rightly struck down by the High Court. 10. In Harish Verma and Ors. v. Ajay Srivastava and Anr., it has been held that the selection of students who had secured marks less than the minimum marks prescribed by the Medical Council of Indias Regulation on account of reduction in the minimum marks in the entrance examination made by the State Government was liable to be struck down and ignored. If the State has a case for making a departure from the standards laid down by the Medical Council of India or for carving out an exception in favour of any identifiable class of persons, then it is for the State to represent to the Central Government and/or the Medical Council of India and made out a case of justification before the Medical Council of India. It was held that there can be only one common entrance test for determining eligibility for post-graduation for in-service candidates and those not in service. The requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the Medical Council of India Regulations framed in this behalf. 11. A Division Bench of this Court reported as Mamta Bansal and Ors. v. State of Punjab and Ors. 2002 (4) Recent Services Judgments 277 has held that the State has no jurisdiction to completely withdraw the condition of minimum qualifying marks for reserved categories. It was obligatory no the part of the State to approach Medical Council of India to lower the prescribed standard and on such confirmation the State Government alone can relax the minimum marks. 12. The judgments referred to by learned Counsel for the petitioner Ratheesh Babu G. v. University Grants Commission, Delhi and Ors. 2005 (4) Services Law Reporter 355 and E.V. Chinnaiah v. State of Andhra Pradesh 2005 (3) Services Law Reporter 363 are distinguishable and do not deal with the question of reducing the minimum qualifying marks of a physically handicapped person. 13. The Judgment in Nidhi Kamra and Ors. v. Baba Farid University of Health Sciences, Faridkot and Anr. 2005(1) Services Law Reporter 355 cited by learned Counsel for the petitioner is again not applicable to the facts of the present case. Though in the said case it was held that seats reserved for handicapped persons should not go waste on the ground of technical stipulation. But the technical stipulation was in respect of determination of physical disability of the candidate and not relating to eligibility condition fixed for admission to the course in terms of the Regulations framed by Medical Council of India. The said judgment is clearly distinguishable and not applicable to the facts of the present case. 14. Thus, I am of the opinion that claim of the petitioner to fix minimum qualifying marks for physically handicapped persons at par with the qualifying marks for Scheduled Castes, Scheduled Tribes and Other Backward Classes cannot be accepted. Therefore, I do not find any merit in the writ petition and, thus is dismissed.