Judgment :- Manjula Chellur, Ag.C.J. 1. WA 315/2012 is filed challenging an order dated 22.2.2012 refusing an interim relief in W.P.No. 4279/2012, by the learned single Judge. 2. The Writ Petition came to be filed by the petitioner challenging Ex.P3 an order issued by the State Government, alleging the same as contrary to the stipulation contained in clause 9 of Ex.P1 Prospectus. The appellant appeared for Common Entrance Examination for admission to Post Graduate Medical Course in the State. In Ex.P3, the State Government had given concession or relaxation to service quota candidates sofaras negative marks, hence it is contended that Ex.P3 is in violation of Article 14 of the Constitution of India and sought for quashing the same. As the learned Single Judge refused interim relief of staying the operation of Ex.P3, appellant filed this appeal. All are required to appear for Common Entrance Examination and only those candidates securing minimum of 50 marks at the examination would be eligible for admission process. This condition was stipulated and implemented at the instance of the 4th Respondent Medical Council of India (for short MCI). As Ex.P3 has no prior approval of the 4th respondent, the withdrawal of negative marking for in-service candidates is contended, against the regulations prescribed by the MCI. According to the petitioner it is nothing but a move to facilitate certain candidates in service to secure Post Graduation Seats. Therefore, the action in issuing Ex. P3 is highly motivated and the move is nothing but a malafide one. There is no provision for bifurcation of allotment of seats between service quota candidates and non-service quota candidates so far as the 4th Respondent is concerned. On the face of it Ex.P3 has no nexus with the object of the selection process as there is no basis for granting such relaxation, is the contention of the petitioner. At no point of time such relaxation was conceived by this Court. It is nothing but abuse of power by the 1st Respondent State and cannot be a policy which could have positive results is the stand of the petitioner. If Ex.P3 is given effect to, it would lead to two categories of candidates, one who gets admission with negative marks with rules applicable and the other who gets admission with out negative marks. If Ex.P3 is given effect to, it would lead to two categories of candidates, one who gets admission with negative marks with rules applicable and the other who gets admission with out negative marks. With these averments, he seeks for the following reliefs: i) To issue a writ, order or direction setting aside/quashing Exhibit P3 order as arbitrary, unreasonable and illegal and hence violative of Article 14 of the Constitution of India. ii) To grant such other reliefs including interim eliefs as may be found just, necessary and reasonable in the facts and circumstances of the case. iii) To direct the respondents to pay the petitioner the entire costs of the proceedings. 3. So far as W.P.(C) 8607/2012 is concerned the petitioner applied for P.G. course under general merit quota. He even attended the entrance examination on 19.02.2012. He could not secure minimum eligibility marks of 50% out of 1200 marks. Exts. P3 and P4 have resulted in special privilege to service quota candidates. This also has an impact on the other service quota candidates because the candidates who could not have secured eligible marks with negative marking have secured eligible marks, thereby obstructs service quota candidates who are more meritorious to secure a seat. It is nothing but a discriminatory approach on the part of the 1st Respondent State. Therefore, they challenge the same as gross violation of Article 14 of the Constitution of India. If only negative marking was not applicable to the petitioner, he would have become eligible for the Post Graduation course as he secured 476.3514 out of 1200 marks. There cannot be any different method in the matter of deducting negative marks so far as service quota candidates and non-service quota candidates. The service quota candidates are not separate class for that purpose as different from open quota candidate. If any privilege is extended it has to be extended to all other candidates like the petitioner who had applied in the general merit quota. With these averments he has sought for the following reliefs: i) Call for the records leading to Exhibits P3, P4, P5 and P6 and quash the same to the extent it does not grant the privilege that extended to service quota candidates in the matter of deducting negative marks or incorrect responses to the general merit quota candidates including the petitioner. ii) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to conduct Entrance Examination as per Exhibit P1 afresh without deducting negative marks for incorrect responses by extending the privilege granted to service quota candidates as per Exhibits P3 and P4 to all other candidates or in the alternative to issue a writ of mandamus or any other appropriate writ order or direction to grant the privilege granted to the service quota candidates as per Exhibits P3 and P4 to the applicants in general merit quota including the petitioner by without deducting the marks for incorrect responses by revaluing all the answer sheets in the Entrance Examination conducted as per Exhibit P1 and by declaring the results afresh by the 3rd respondent. 4. In W.P. (C) 6550/2012 the petitioner a doctor who is in service had applied for Post Graduation Course both under open quota as well as service quota. It was only a single examination. According to the petitioner Ex.P3 Government order issued by the State Government at the fag end of the selection process one day prior to the test by withdrawing negative marks under Ex. P3 is nothing but an arbitrary and illegal approach on the part of the first respondent State. It is further contended, the award of negative marks in the competitive test for P.G. is a practice that has been followed for several years and the same could not be cancelled abruptly without the approval of the MCI. Ex. P3 is nothing but a colorable exercise of power for extraneous consideration, is the contention of the petitioner. The result of Ex.P3 is discrimination in the matter of admission to P.G. Course between open quota candidates and in-service candidates, which was not at all contemplated under Ex.P1 Prospectus. The stipulation regarding negative marks applies to physically challenged category as well, though they are entitled for relaxation. By virtue of Ex.P3 less meritorious candidates are inducted, contending as above, he sought for the following reliefs: i) Issue a Writ of Certiorari or other appropriate writ order or direction quashing Ex. P3 as unjust, illegal and arbitrary. ii) Declare that the decision taken by the Government by way of Ex. P3 at the fag end of the selection process is illegal and untenable and therefore the same should not be implemented. P3 as unjust, illegal and arbitrary. ii) Declare that the decision taken by the Government by way of Ex. P3 at the fag end of the selection process is illegal and untenable and therefore the same should not be implemented. iii) Issue a Writ of Mandamus directing the respondents to refrain from implementing Ex. P3. iv) Issue such other writs, order or directions as this Hon'ble Court deems fir in the facts and circumstances of the case. 5. During the course of pendency of this petition, several similarly situated persons got impleaded and so far as the service of writ petition, the petitioner was allowed to take notice by paper publication indicating the date of appearance as 02.04.2012 by filing an application I.A.No.4542/2012 so as to see that in case the writ petition is allowed, the affected candidates are put on notice. 6. As against this, the first respondent Secretary to Government, Health and Family Welfare Department has filed counter affidavit. According to the 1st respondent the ground of challenge that it has no nexus with the object of selection process and as such violative of article 14 of the Constitution of India; that the Government has not bifurcated the seats available to Post Graduate students between service quota and non-service quota is without any foundation as out of total number of seats available in P.G. Degree/Diploma 50% of seats are set apart to this group who belong to the open quota and 40% out of the remaining 50% is set apart to in-service candidates which comprises of Doctor's from Medical Education, Service Health, and Municipal Service. 7. The contentions raised by the petitioners according to the 1st respondent are totally unacceptable. According to the 1st respondent after considering various aspects of the issue, pursuant to the judgment in W.P.(C)3051/2012 and connected cases, such a decision was taken. It is the stand of the 1st respondent that in-service candidates are the persons who have graduated some time in the past and have joined the Government Service and on account of they being occupied with obligations being in the service of Government are likely to distance themselves from theoretical studies and as such they cannot be expected to compete effectively with fresh medical graduates. The very permission for in-service candidates to do Post Graduation by providing a separate channel according to the 1st respondent is to enable them to equate themselves to cater specialised treatment at Government hospitals and other Departments as stated above. This would enrich the health service of the State. The open quota candidates may not necessarily get attracted to public service after qualifying themselves in post graduation. The in-service candidates and the open quota candidates are two classes by themselves and the purpose sought to be achieved by permitting the in-service candidates to acquire Post Graduation qualification cannot be over looked and ignored. The in-service candidates who would be able to attend higher academic qualification would be available to be posted in the rural areas by the State Government, because the retention of their services under the State Government is secured by obtaining a bond for ten years which is a condition precedent for them for taking admission for post graduation or diploma courses. Such bond cannot be insisted from non-service candidates as they would only be looking for better future prospects after obtaining their post graduation rather than serving under the State service. In respect of general quota candidates a bond to the effect that they shall serve the State Government for one year alone is insisted upon. The entire exercise is only to have better doctors in public sector also. The standard of education prescribed is not at all diluted so far as admission to post graduation degree / diploma courses as 50% marks is still required to be obtained even by in-service candidates for qualifying themselves in the entrance examination. As they would be unable to compete with the open quota candidates, the condition of negative marking was diluted with a view to encourage those in-service candidates who obtain minimum qualifying marks also could get themselves admitted to post graduate courses. There is no decrease in the qualifying marks prescribed by the MCI. Therefore, there is no violation of any stipulation prescribed by MCI. Larger Public Interest is the motto behind such step. Standard of excellence is not given a go by as 50% minimum qualifying marks is prescribed for all the candidates irrespective of from which channel they come from. The move is only to facilitate Medical Practitioners in service, to equip themselves academically for providing better treatment to the general public. Larger Public Interest is the motto behind such step. Standard of excellence is not given a go by as 50% minimum qualifying marks is prescribed for all the candidates irrespective of from which channel they come from. The move is only to facilitate Medical Practitioners in service, to equip themselves academically for providing better treatment to the general public. The above decision was taken having regard to the similar situation for admission to Medical Post Graduate Course in the State of Tamil Nadu and also for MDS entrance Examination in the State of Kerala. There is no illegality or arbitrariness as claimed by the Petitioners. This concession was done in lieu of their rendering service under the State Government which includes rural service also. The attempt of the open quota candidates like petitioners is only to take over the exclusive quota meant for in-service candidates. 8. It is further contended, on account of dearth of specilised doctors in Health Service Department in the State of Kerala, the Government extended the opportunity to in-service doctors to get themselves admitted to post Graduate courses in order to facilitate the general public to have special doctors even in Government Hospitals. Practice of negative marking was undertaken only with a view to assess the capability of candidates and on account of lapse of considerable time from the date of their graduation, the in-service candidates are not expected to have the same capability. Negative marking was introduced only with the purpose of avoiding blind marking of answers and assessment of exactitude but the same cannot be made the yardstick to in-service candidates also. On account of the above objectives, the State Government took a decision which is perfectly within the regulations stipulated by the MCI. With these averments, they have sought for dismissal of the writ petitions and also the appeal. 9. The impleading applicants in W.P.(C)No.6550/12 have raised more or less the same contentions as the other writ petitioners. 10. We have heard learned counsel Mr. Angel Mathews appearing for the appellant in the writ appeal and the petitioner in W.P.(C)No.4279/2012; Mr. Kaleeshwaram Raj appearing for the petitioner in W.P.(C)6550/2012; Mr. Joseph Sebastian Puriadian appearing for petitioner in W.P. (C) 8670/2012; Learned Advocate General representing the respondent State; Mr. Alexander Thomas-learned Standing counsel for the MCI and learned senior counsel Mr. B.R. Kaimal arguing on behalf of the respondents. 11. Kaleeshwaram Raj appearing for the petitioner in W.P.(C)6550/2012; Mr. Joseph Sebastian Puriadian appearing for petitioner in W.P. (C) 8670/2012; Learned Advocate General representing the respondent State; Mr. Alexander Thomas-learned Standing counsel for the MCI and learned senior counsel Mr. B.R. Kaimal arguing on behalf of the respondents. 11. From the above pleadings and the arguments, we notice that the appellant and other writ petitioners challenge Ex.P3-Government Order providing withdrawal of negative marking so far as in-service candidates as, in violation of Article 14 of Constitution of India and malafide. 12. According to the learned counsel appearing for the petitioners in various writ petitions, the classification must be based on intelligible differentia which distinguish persons or things grouped together from those excluded. Such differentia must have a rationale relationship to the object sought to be achieved by the statute in question with the qualification that the differentia and object are different so that the object by itself would be the basis for classification. According to the petitioners, the very object of the common entrance examination is to evaluate all candidates by a common yardstick which is a well settled principle in the case of DR.PREETHI SRIVASTAVA -vs-STATE OF M.P. (1999) 7 SCC 120. According to them, in the absence of Ex.P3 not having any rationale explanation to the object stated above, it is nothing but, violation of Article 14 of the Constitution of India. Once single common entrance examination is contemplated, there has to be only single or common process of evaluation of the answers. Therefore, Ex.P3 suffers from malafides such as without application of mind as well settled by Apex Court in Preethi Srivatava's case. It is also well settled principle that State cannot decide qualifying marks and lay down rules and norms of admission for medical P.G. Courses as it is MCI which has to do the same. When separate entrance examination for service and open category candidates is prohibited by the Apex Court (as indicated in the judgment of STATE OF M.P. AND OTHERS Versus GOPAL D. TIRTHANI AND OTHERS (2003) 7 SCC 83) it is also impermissible to have separate evaluation is the contention. It is further argued that Supreme Court negatived the contention of service candidates for a declaration that they are qualified for admission to P.G. Courses in Medicine without insisting on prescribed minimum qualifying marks. It is further argued that Supreme Court negatived the contention of service candidates for a declaration that they are qualified for admission to P.G. Courses in Medicine without insisting on prescribed minimum qualifying marks. According to the petitioners, the challenge is to Ex.P3 and not the rank list which is prepared taking into consideration Ex.P3. If Ex.P3 is unconstitutional, the consequence of Ex.P3 has to be negatived automatically, is the stand of the petitioners. According to the petitioners, the situation and the state of affairs that existed at the time of Ex.P3 alone, would be the criterion to decide and not the state of affairs at the time of hearing the arguments. 13. So far as the defence raised in the counter affidavit of the State, the learned Advocate General by placing reliance on several decisions contended that candidates do not have any right to get admission on the basis of Prospectus and the Government is free to amend the Prospectus by virtue of clause 19 of the Prospectus. According to the learned Advocate General, classification of in-service candidates and open category candidates is based on intelligible differentia and there is no element of hostile discrimination. Therefore, the challenge to Ex.P3 is unsustainable. There is no violation of standard set by MCI. Placing reliance on several cases, they contend that to meet a just and appropriate need, special treatment can be extended to in-service candidates and the same does not amount to discrimination or arbitrariness. According to the learned Advocate General, proper balance has to be struck both by the MCI, by Central Government and the State in exercise of their respective powers and the MCI cannot be ascribed with such powers as in respect of areas over which the state assigned goals have to be performed. 14. The learned Advocate General seriously challenged the locus standi of the petitioners to challenge the amendment. According to them, the petitioners cannot contend that Ex.P3 amounts to changing the rules after the game has started. Therefore, the candidates aspiring for seats cannot have any fundamental right to be enforced in respect of the same. The Prospectus is only an invitation for application to the course for admission. It cannot be equated with that of a notification for public employment. The general quota candidates and in-service candidates have separate quota set apart for themselves. Therefore, the candidates aspiring for seats cannot have any fundamental right to be enforced in respect of the same. The Prospectus is only an invitation for application to the course for admission. It cannot be equated with that of a notification for public employment. The general quota candidates and in-service candidates have separate quota set apart for themselves. Therefore, the open quota candidates cannot challenge the procedure adopted to evaluate in-service candidates which is a distinct class by itself. So far as in-service candidates who are impleaded, by no stretch of imagination can assail the withdrawal of negative marks in respect of in-service candidates as they are also entitled for such benefit. Though in-service candidates who may not secure admission on account of their lower seniority position, cannot attack the amended provision since there is no discrimination inter-se between the in-service candidates. It is further contended by learned senior counsel Mr. B.R. Kimal supporting the stand of the Advocate General, that the selection committee can evolve such procedure as it deems fit for selection even after the commencement of the selection process and he further submits it is impermissible for the candidate to challenge the selection process after having participated in the same. 15. So far as the stand of the MCI -4th respondent, its powers under the Indian Medical Council Act, empowers them to prescribe standards in medical education as well as to frame regulations on the subject. The P.G. regulations of the Government are binding in its nature. The Post Graduate Medical Education Regulations, 2000 came to be introduced and subsequently amended by notification dated 21.7.2009. According to Cl. 9 for selection of post graduate students a definite process is required which prescribes mainly merit. According to the MCI, the regulations and decisions of MCI are binding not only on the Universities but also the State Government. The Central Government by letter dated 14.1.2010 requested the MCI to examine the issue of defining remote and difficult areas so that doctors can avail the benefit of recent provision made in the MCI regulation relating to incentives for rural posting in terms of reservation of seats in PG Diploma or additional marks in entrance test for admission to PG Medical Course and accordingly, the committee has approved the same. This is in force from 16.4.2010. This is in force from 16.4.2010. According to the MCI, reasonable weightage to service rendered in rural and tribal areas by in-service candidates cannot be given for attaining eligibility as the candidate has to acquire minimum marks prescribed for eligibility for admission to post graduate course and weightage can only be given to eligible candidates for preparing the merit list. In other words, no candidate who has failed to obtain minimum eligibility marks as prescribed by the MCI shall be admitted to any course in the said academic year. 16. So far as the present situation is concerned, Common Entrance Test was notified for both general or open category candidates and in-service quota candidates. All the candidates must get minimum eligibility marks in the entrance test as per clause 9 of the Prospectus. Each answer with correct response carries 4 marks and the negative marking will be adopted for incorrect answer and 1 mark will be deducted for each incorrect response and 0 mark will be given for questions not answered. On 19.2.2012 at the venue of the entrance examination it was announced that no negative marking for incorrect response for in- service candidates would be awarded. Modified Prospectus was issued on 18.2.2012. According to the 4th respondent, Common Entrance Test for regulating students to PG course is a must. This is to have a uniform criterion for judging the merit of all candidates. According to them, MCI is the sole repository of the power to decide on the qualifying marks in such common entrance examination for PG medical admissions and that the state authorities cannot impinge on the standards in institutions for education as it is exclusively within the purview of the union list as per entry 66 of the union list. This is binding on the State. This position was clarified in GOPAL TIRTHANI'S case reported in 2003 (7) SCC 83. In the said case, it was held that a Common Entrance Test and minimum qualifying marks as determined by experts in the field of medical education was a must. This is binding on the State. This position was clarified in GOPAL TIRTHANI'S case reported in 2003 (7) SCC 83. In the said case, it was held that a Common Entrance Test and minimum qualifying marks as determined by experts in the field of medical education was a must. Therefore, according to the MCI, State Government and Universities cannot dilute the standard fixed by MCI lowering the qualifying marks because the Common Entrance Test is to assess the knowledge and intelligence quotient of a candidate whether he would be able to prosecute post graduate studies if allowed to do so and secondly, assess the merit of inter-se candidates which is of vital significance at the counseling when it comes to allotting succeeding candidates to different disciplines wherein the seats are limited and some disciplines are considered to be more creamy and are more coveted than the others. When minimum qualifying marks cannot be lowered or relaxed contrary to MCI regulations and if the number of in-service candidates do not qualify at the entrance examination, the seats so left vacant shall be diverted and made available for open category candidates. The underlying principle is to have a uniform criterion and common yardstick. Hence, separate entrance examinations were prohibited after introduction of NEET (National Eligibility - Cum -Entrance Test) for regulating PG admissions 2013 - 14 onwards. The States and competent authorities can conduct the Common Entrance Test for admission to PG courses in the State upto the academic year 2012-13. In this process, MCI regulations do not expressly stipulate that there should be or should not be negative marking in the Common Entrance Test. Therefore, upto 2012-13 the State authorities have the discretion to decide whether or not to adopt negative marking in the evaluation of such CET. Having regard to the principles laid down by various decisions of the Apex Court, it will not be reasonable and legal to dispense with negative marking for evaluation of one category of candidates like service candidates while retaining such process for open category candidates. According to the MCI there has to be uniform assessment norms for evaluating the performance of all candidates in the tests concerned. 17. With the above contentions and arguments at our command, we proceed to formulate the following points for our consideration: 1. Whether by virtue of Clause 19 at Ex. According to the MCI there has to be uniform assessment norms for evaluating the performance of all candidates in the tests concerned. 17. With the above contentions and arguments at our command, we proceed to formulate the following points for our consideration: 1. Whether by virtue of Clause 19 at Ex. P-1 the Government is empowered and justified in amending the Prospectus for admission to post graduate medical degree / diploma course, 2012 in terms of Ex. P-3? 2. Whether the amendment in question to the Prospectus extending benefit to in-service candidates results in hostile discrimination on account of arbitrary decision? 3. Whether withdrawal of negative marking in respect of in-service quota candidates will result in dilution of standard prescribed by the MCI in respect of admission to PG Medical course? 18. Ex. P-1 is the Prospectus for admission to Medical Post Graduate Degree / Diploma Courses, 2012 which refers to different aspects of the matter like duration of the court, fee, eligibility for admission, number of seats available, seats under general merit quota and reservation quota; what happens to un-availed seats of SC & ST; reservation of seats for service candidates, eligibility for service quota; how and when to apply, entrance examination - method of examination and evaluation, etc. Clause VII refers to reservation of seats for service candidates and sub-clauses refer to various terms and conditions pertaining to service candidates. It also refers to who would all come within the status of service quota candidates. Other details need not be looked into as we are not concerned with the other terms and conditions. However, sub-clause (b) of clause VII refers to application and selection under service quota which reads as under: "Application & Selection under Service Quota. The service candidates should apply as stipulated in clause VIII of this Prospectus. The controlling officer / Head of Department concerned will verify the application and documents, prepare a provisional rank list according to the seniority of the candidates and publish it providing sufficient time for submitting complaints/objections. The appeals/complaints, if any, against the provisional rank list should reach the Head of Department within the time limit prescribed. Objections through email will not be considered. The appeals/complaints, if any, against the provisional rank list should reach the Head of Department within the time limit prescribed. Objections through email will not be considered. The finalised Provisional Rank List along with the individual applications and objections, if any, received will be forwarded to the Director of Medical Education within 45 days from the last date fixed for the receipt of application who is the convener of the Postgraduate Selection Committee. The DME will place the same before the Post graduate Selection Committee for the selection of the candidates. The committee will finalise the rank list. The PG selection committee have power to deny admission in respect of the service candidates who are facing disciplinary action on the basis of the recommendations made by HOD's concerned depending upon the gravity of the offence. However, this will be subject to review and approval of the Government." 19. Clause IX refers to Entrance Examination -method of examination and evaluation, which is very relevant for the controversy on hand. Sub-clause (a) of Clause IX reads as under: "(a) Mode of selection by Entrance Examination:- (i) The competitive entrance examination shall be of the standard of M.B.B.S Examination and shall cover all the subjects of the M.B.B.S Course. All questions will be of objective type. All entries in the OMR sheet including filling of bubbles should be done by using ball pointed pens only (Blue or Black). Each answer with correct response shall be awarded FOUR marks. Negative marking will be adopted for incorrect responses. ONE mark will be deducted for each negative response and ZERO mark will be given for the questions not answered. More than one answer indicated against a question will be deemed as incorrect response and will be negatively marked. A minimum of 50% mark in the entrance examination is mandatory for general category candidates to become eligible for admission as per the Medical Council of India Postgraduate Regulations. In case of candidates belonging to SC/ST and SEBC the required minimum marks in the entrance examination is 40% and in case of candidates with locomotory disabilities of lower limbs between 40% and 70%, the required minimum marks shall be 45%." 20. In case of candidates belonging to SC/ST and SEBC the required minimum marks in the entrance examination is 40% and in case of candidates with locomotory disabilities of lower limbs between 40% and 70%, the required minimum marks shall be 45%." 20. Clause XIX is a general clause empowering the Government with certain powers which reads as under: "General: Notwithstanding anything contained in the Prospectus, the Government may at any time, on their own volition or otherwise after calling the records of the case, revise any order passed by a subordinate authority. This Prospectus is subject to modification/addition as may be considered necessary by the Government and issued as executive orders / notification." (emphasis supplied by us) 21. It is not in dispute that Common Entrance Test was scheduled on 19.2.2012. Ex. P3 is the order dated 18.2.2012 of the Government which reads as under: "As per the judgment read above, the Hon'ble High Court has directed the Government to consider the representations of the petitioners in WP (C) Nos.3051, 3938, 3988, 3966 OF 2011 and pass a final order before the results of the PG Medical Entrance Examinations 2012 are published. The petitioners have requested to dispense the negative marking system for Service Quota candidates for PG Medical Entrance Examinations 2012. Government have examined the matter in consultation with the Director of Medical Education and found that the Service Quota candidates appearing the Entrance examination for Post Graduate Dental Admission are exempted from the negative marking. In the circumstances Government are pleased to incorporate the following condition in Clause IX a (I) of the Prospectus for Admission to Post Graduate Medical Degree / Diploma Courses, 2012. "There will be no negative marking for incorrect responses, in case of Service Quota candidate appearing for the Common Entrance Examination." The Government order read above stands modified to the above extent and the judgment of the Hon'ble High Court is complied with accordingly." Ex. P-2 is the press release which came to be issued on 18.2.2012, which is nothing but the gist of Ex. P-3. According to the appellant and writ petitioners, a day prior to the examination, press release came to be issued and on 19.2.2012 at the venue of the examination it was announced that there will not be negative marking for incorrect responses so far as service quota candidates. P-3. According to the appellant and writ petitioners, a day prior to the examination, press release came to be issued and on 19.2.2012 at the venue of the examination it was announced that there will not be negative marking for incorrect responses so far as service quota candidates. One of the main defenses raised by the learned Advocate General and also Mr. B.R. Kaimal -senior counsel appearing for some of the respondents is that having appeared for the examination, it is not open to the petitioners to challenge Ex.P-3. It is also contended once rank list is published, mere challenge to Ex.P-3 is of no avail. Reliance is placed on the decisions reported in K.H.Siraj v. High Court of Kerala (2006) 6 SCC 395 & Vijendra Kumar Verma v. Public Service Commission (2011) 1 SCC 150. So far as this argument, we are unable to appreciate the same. When the examination was scheduled on 19.2.2012, if there was an announcement at the venue of the examination, the candidates other than service quota candidates or some of the service quota candidates as well who are aggrieved by the last minute change of method of evaluation introduced by the State Government would be definitely in a dilemma whether they should write the examination or not. Such announcement being out of the blue, one cannot expect the candidates to leave the examination hall in search of a lawyer. No sane person would be expected to do so as they would not like to waste precious time of one year waiting for the next Common Entrance Test. As could be seen from the records, on 19.2.2012, entrance examination was conducted, W.P.(C) 4279/2012 was filed on 21.2.2012 within a matter of two days. This 2 days time is definitely explainable as they must have contacted the advocate and the advocate must have taken 1 or 2 days time to prepare the writ petition and file the same. Therefore, it is not open to the respondents to contend that having taken the examination, when the results were announced indicating failure so far as the appellant and petitioners are concerned, the petitioners have approached the Court and the same cannot be accepted, because the writ petition came to be filed much prior to the evaluation and Rank List prepared by the authorities concerned. 22. 22. Then coming to the other argument of non-challenge to the Rank List, if petitioners were to convince the Court that Ex.P-3 deserves to be quashed as illegal and arbitrary, automatically all consequences arising out of Ex.P3 have to be set aside. Therefore, without a challenge to the Rank List, the petitioners still can maintain their stand that Ex.P-3 deserves to be quashed. 23. Then coming to the stand of the petitioners that the very move of the Government is in violation of Article 14 as Ex.P-3 creates discrimination between 2 similarly placed groups apart from the move being in direct conflict with the law laid down by majority decision of the Constitutional Bench of the Apex Court in Dr. PREETI SRIVASTAVA vs. STATE OF M.P. & ORS. Reported in (1999) 7 SCC 120, several issues arose for consideration before the Constitutional Bench. The first issue that arose was as under: "The question is whether apart from providing reservation for admission to the postgraduate courses in Engineering and Medicine for special category candidates, is it open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission under the reserved category." Their Lordships while answering the above question have gone into detail several aspects of the matter referring to Entry 66 of List no.1, Entry 25 of List no.3 and also Regulation 33 of the MCI. They had also gone into the need and purpose of Common Entrance Examination with reference to standard of assessment of merit of the students. In that context their Lordships opined that they need not examine whether reservations are permissible at the post graduate level in medicine as the said issue was not raised before the Constitution bench. Therefore, they felt there was no need to express opinion on the same. They were mainly concerned whether any special provision in the form of lower qualifying marks in PGMEE can be prescribed for the reserved category. Therefore, they felt there was no need to express opinion on the same. They were mainly concerned whether any special provision in the form of lower qualifying marks in PGMEE can be prescribed for the reserved category. While rejecting the arguments that there was no need for any qualifying marks prescribed for the Common Entrance Examination for the reserved category, they opined there can be lower qualifying marks for the reserved category of candidates as against general category of candidates if an expert body like the MCI opines so, but the disparity between the qualifying marks obtained by these two groups cannot create a big disparity at the post graduate level. It was held that the post graduate level is only one step below the apex level of medical training and education where no reservations are permissible and selections are entirely on merit. They further held, at only one step below said level, the disparity in qualifying marks is possible if the expert body permits and it must be minimal. They also held that it must be maintained at a level where it is possible for the reserved category candidates to come up to certain level of excellence when they qualify in the speciality of their choice and the same should be because of the public interest where they have to render excellent service. The question that arose was 40% qualifying marks were prescribed for the general category; 20% for the reserved category and such disparity became the bone of contention, whereas the MCI has permitted 35% qualifying marks to the reserved category as against qualifying marks of 40% to the general category. While considering this issue another question that came up for consideration before their Lordships was who should decide the qualifying marks and will it affect the standard of education. Paragraphs 34, 35, 36 & 38 are relevant which read as under: "34. Learned counsel for the States of Uttar Pradesh and Madhya Pradesh contend that it is for the States to decide the qualifying marks which should be prescribed for the reserved category candidates at the PGMEE. It is a matter of state policy. The Medical Council of India cannot have any say in prescribing the qualifying marks for the PGMEE. The two States have contended that it is the State which controls admissions to the post-graduate courses in medicine. It is a matter of state policy. The Medical Council of India cannot have any say in prescribing the qualifying marks for the PGMEE. The two States have contended that it is the State which controls admissions to the post-graduate courses in medicine. It is for the State to decide whether to provide a common entrance examination or not. This examination may or may not have any minimum qualifying marks or it may have different qualifying marks for different categories of candidates. It is, therefore, not open to any other authority to interfere with the rules for admission to the post-graduate medical courses in each State. They have also contended that a common entrance examination is merely for the purpose of screening candidates and since all the candidates have passed the M.B.B.S. examination the standard is not affected even if no minimum marks are prescribed for passing the common entrance examination. The latter argument we have already examined and negatived. The other contention, however, relating to the power of the State to control admissions to the post-graduate courses in medicine requires to be examined. 35. The legislative competence of the 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 States 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. 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. Co-ordination 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 co-ordination 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. 36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. 36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List-I. For example, a State may, for admission to the post- graduate 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 do have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are: (1)The calibre of the teaching staff; (2) A proper syllabus designed to achieve a high level of education in the given span of time; (3)The student-teacher ratio; (4) The ratio between the students and the hospital beds available to each student; (5) The calibre of the students admitted to the institution; (6)Equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) Adequate accommodation for the college and the attached hospital; and (8)The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged. 38. The respondents rely upon some observations in some of the judgments of this Court in support of their stand that it is for the State to lay down the rules and norms for admission; and that these do not have any bearing on the standard of education. In P. Rajendran v. State of Madras & Ors. ([1968] 2 SCR 786), a Constitution Bench of this Court considered the validity under Articles 14 and 15 (1), of district- wise reservations made for seats in the medical colleges. In that case, the Act in question prescribed eligibility and qualifications of candidates for admission to the medical colleges. The Court observed, "So far as admission is concerned, it has to be made by those who are in control of the colleges – in this case, the Government. In that case, the Act in question prescribed eligibility and qualifications of candidates for admission to the medical colleges. The Court observed, "So far as admission is concerned, it has to be made by those who are in control of the colleges – in this case, the Government. Because the medical colleges are Government colleges affiliated to the university. In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it, subject to the rules of the university as to eligibility and qualifications. This was what was done in these cases and, therefore, the selection cannot be challenged on the ground that it was not in accordance with the University Act and the rules framed thereunder." This Court, therefore, upheld the additional criteria framed by the State for admission which were not inconsistent with the norms for admission laid down by the University Act. Since these additional qualifications did not diminish the eligibility norms under the University Act, this Court upheld the additional criteria laid down by the state as not affecting the standards laid down by the University Act. The question of diluting the standards laid down, did not arise." 24. Per majority, the Hon'ble Apex Court held that there cannot be any compromise so far as the merit is concerned but an expert body like MCI can evolve a method of different qualifying marks for different groups provided there is no big disparity in the qualifying marks. Ultimately, the selection has to be based on merit. At paragraphs 31 & 32 their Lordships refer to standard of education and why there should not be big disparity of qualifying marks between the two groups which reads as under: "31. A large differentiation in the qualifying marks between the two groups of students would make it very difficult to maintain the requisite standard of teaching and training at the postgraduate level. Any good teaching institution has to take into account the calibre of its students and their existing level of knowledge and skills if it is to teach effectively and higher courses. If there are a number of students who have noticeably lower skills and knowledge, the standard of education will not be able to benefit from or assimilate higher levels of teaching, resulting in frustration and failures. If there are a number of students who have noticeably lower skills and knowledge, the standard of education will not be able to benefit from or assimilate higher levels of teaching, resulting in frustration and failures. It would also result in a wastage of opportunities for specilalised training and knowledge which are by their very nature, limited. 32. It is, therefore, wrong to say that the standard of education is not affected by admitting students with low qualifying marks, or that the standard of education is affected only by those factors which come into play after the students are admitted. Nor will passing a common final examination guarantee a good standard of knowledge. There is a great deal of difference in the knowledge and skills of those passing with a high percentage of marks and those passing with a low percentage of marks. The reserved category of students who are chosen for higher levels of university education must be in a position to benefit and improve their skills and knowledge and bring it to a level comparable with the general group, so that when they emerge with specialised knowledge and qualificatio0ns, they are able to function efficiently specailised knowledge and qualifications, they are able to function efficiently in the public interest. Providing for 20% marks as qualifying marks for the reserved category of candidates and 45% marks for the general category of candidates, therefore, is contrary to the mandate of Article 15(4). It is for the Medical Council of India to prescribe any special qualifying marks for the admission of the reserved category candidates to the postgraduate medical course. However, the difference in the qualifying marks should be at least the same as for admission to the undergraduate medical courses, it not less." Subsequently, in the case of STATE OF M.P. AND OTHERS Versus GOPAL D. TIRTHANI AND OTHERS (2003) 7 SCC 83 by referring to DR. PREETI's case their Lordships at paras 18 & 19 referred to several issues which are relevant for the purpose of considering the present case. Paras 18 & 19 read as under: "18. It would be useful to crystallise as issues the questions of law which arise for decision in these appeals and around which the learned counsel for the parties have made their submissions. Paras 18 & 19 read as under: "18. It would be useful to crystallise as issues the questions of law which arise for decision in these appeals and around which the learned counsel for the parties have made their submissions. They are:- (1) Whether it is permissible to hold and conduct separate entrance examinations for in-service and open category candidates, or should there be only one common entrance test? (2) whether it is permissible to compartmentalize the evaluation of performance of in-service candidates by assigning 40 marks for entrance test, 30 marks for integrated performance at the first, second and third MBBS examination and 30 marks based on length of service in the rural/tribal areas? (3) whether weightage can be given for the length of service in the rural/tribal areas, and if so, in what manner? And (4) whether women candidates who have served for three consecutive years in rural areas constitute a class by themselves so as to deserve special treatment? Nature of 20% seats allocated for in-service candidates -reservation or channel of entry? 19. The controversy in the present litigation does not concern the open category candidates; it is confined to in-service candidates. We, therefore, propose to preface our discussion by determining the nature of 20% seats allocated to in-service candidates whether it is by way of reservation or quota or is a channel of entry. Our task stands simplified by the law laid down by a three-Judge Bench decision of this Court recently in K. Duraiswamy and Anr. v. State of Tamil Nadu and Ors. . The question arose for decision in almost a similar factual background. The seats were at the State level and not all-India quota seats. The State Government had allocated 50% of the seats exclusively for in-service candidates and left the remaining 50% seats as open quota, i.e., to be filled in from out of such candidates as were not in State Government service. The classification was made as 'service quota' and 'open quota', for in-service candidates and other candidates respectively, confining the respective class/cadre candidates to the respective percentages earmarked for the two of them exclusively. The classification was made as 'service quota' and 'open quota', for in-service candidates and other candidates respectively, confining the respective class/cadre candidates to the respective percentages earmarked for the two of them exclusively. The Court held:- (i) the Government possesses the right and authority to decide from what sources the admissions in educational institutions or to particular disciplines and courses therein have to be made and that too in what proportion; (ii) that such allocation of seats in the form of fixation of quota is not to be equated with the usual form of communal reservation and, therefore, the constitutional and legal considerations relevant to communal reservations are out of place while deciding the case based on such allocation of seats; (iii) that such exclusive allocation and stipulation of a definite quota or number of seats between in- service and non-service or private candidates provided two separate channels of entry and a candidate belonging to one exclusive quota cannot claim to steal a march into another exclusive quota by advancing a claim based on merit. Inter se merit of the candidates in each quota shall be determined based on the merit performance of the candidates belonging to that quota; (iv) that the mere use of the word reservation' per se is not decisive of the nature of allocation. Whether it is a reservation or an allocation of seats for the purpose of providing two separate and exclusive sources of entry would depend on the purpose and object with which the expression has been used and that would be determinative of the meaning, content and purport of the expression. Where the scheme envisages not a mere reservation but is one of the classification of the sources from which admissions are to be accorded, fixation of respective quota for such classified groups does not attract applicability of considerations relevant to reservation simplicitor. K. Doraiswamy's case (supra) was considered and explained by another three-Judge Bench of this Court in AIIMS Students' Union v. AIIMS and Ors.,. The following observation is appropriate and apposite for the purpose of the case at hand and is, therefore, extracted and reproduced hereunder. K. Doraiswamy's case (supra) was considered and explained by another three-Judge Bench of this Court in AIIMS Students' Union v. AIIMS and Ors.,. The following observation is appropriate and apposite for the purpose of the case at hand and is, therefore, extracted and reproduced hereunder. The Court was considering the question of allocation of seats between in-service and open category candidates, the candidates in both the categories being medical graduates, and not a reservation in favour of weaker section of the society or those who deserve or need to be affirmatively discriminated. The Court then said— "Some of them had done graduation sometime in the past and were either picked up in the government service or had sought for joining government service because, maybe, they could not get a seat in post graduation and thereby continue their studies because of shortage of seats in higher level of studies. On account of their having remained occupied with their service obligations, they became detached or distanced from theoretical studies and therefore could not have done so well as to effectively compete with fresh medical graduates at the PG entrance examination. Permitting in-service candidates to do post graduation by opening a separate channel for admittance would enable their continuance in government service after post graduation which would enrich health services of the nation. Candidates in open category having qualified in post graduation may not necessarily feel attracted to public services. Providing two sources of entry at the post graduation level in a certain proportion between in-service candidates and otherwise candidates thus achieves the laudable object of making available better doctors both in public sector and as private practitioners. The object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to provide protection and encouragement to one at the entry level." 25. The Court while referring to K. DURAISWAMY V. STATE OF T.N. (2001) 2 SCC 538 and AIIMS STUDENTS' UNION v. AIIMS. (2002) 1 SCC 428 referred to the relevant paragraphs of those decisions wherein their Lordships held that the object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to pr0ovide protection and encouragement to one at the entry level. (2002) 1 SCC 428 referred to the relevant paragraphs of those decisions wherein their Lordships held that the object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to pr0ovide protection and encouragement to one at the entry level. At para 22 they refer to the necessity to have Common Entrance Test, i.e. only one test and why it is a must, which reads as under: "Whether common entrance test - one only - is a must? 22. Now, arises the crucial question -whether it is permissible to hold and conduct separate entrance examinations for the two categories of candidates or should there by only one common entrance test? It is submitted on behalf of the in-service candidates that having done graduation and having then entered into government service, they are detached from theoretical studies and, therefore, it would be too much to expect from them such theoretical knowledge of medical science as would enable them to compete with fresh medical graduates taking up pre-PG test and to qualify for entry into postgraduate courses. It was forcefully submitted that two separate examinations should be held for the two groups and that would not prejudice the open category candidates inasmuch as the two channels being separate and exclusive, the assessment of merit of any one group would not affect the assessment of merit of the candidates in the other group. We cannot accept such a submission." 26. At para 23 while referring to DR. PREETI's case their Lordships referred to other decisions of the Apex Court i.e. K.L. NARASIMHAN; AJAY KUMAR SINGH and NIVEDITA JAIN's cases wherein it was stated that the assemblage of students in a particular class should be within a reasonable range of variable caliber and intelligence, else the students will not be able to move along with each other as a common class. Hence, the need for a common entrance test and minimum qualifying marks as determined by experts in the field of medical education was absolutely necessary. Para 25 of this decision is also relevant which reads as under: 24. The eligibility test, called the entrance test or the pre-PG test, is conducted with dual purposes. Hence, the need for a common entrance test and minimum qualifying marks as determined by experts in the field of medical education was absolutely necessary. Para 25 of this decision is also relevant which reads as under: 24. The eligibility test, called the entrance test or the pre-PG test, is conducted with dual purposes. Firstly, it is held with the object of assessing the knowledge and intelligence quotient of a candidate whether he would be able to prosecute post-graduate studies if allowed an opportunity of doing so; secondly, it is for the purpose of assessing the merit inter se of the candidates which is of vital significance at the counselling when it comes to allotting the successful candidates to different disciplines wherein the seats are limited and some disciplines are considered to be more creamy and are more coveted than the others. The concept of a minimum qualifying percentage cannot, therefore, be given a complete go by. If at all there can be departure, that has to be minimal and that too only by approval of experts in the field of medical education, which for the present are available as a body in the Medical Council of India. Ultimately, at para 36 they sum up as under: "Conclusions 36. We sum up our conclusions as under:- 1. In the State of Madhya Pradesh allocation of 20% seats in post graduation in the Universities of Madhya Pradesh for in-service candidates is not a reservation;it is a separate and exclusive channel of entry or source of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations. Such two channels of entry or two sources of admission is a valid provision. 2. There can be only one common entrance test for determining eligibility for post graduation. The requirement of minimum qualifying marks cannot be lowered or relaxed contrary to Medical Council of India Regulations framed in this behalf. 3. In the State of Madhya Pradesh there are five universities, i.e. there are universities more than one. Regulation 9(2)(iii) cannot be made use of in the State of Madhya Pradesh either singly or in combination with Clause (i) for determining the eligibility for entrance into PG courses. 4. 3. In the State of Madhya Pradesh there are five universities, i.e. there are universities more than one. Regulation 9(2)(iii) cannot be made use of in the State of Madhya Pradesh either singly or in combination with Clause (i) for determining the eligibility for entrance into PG courses. 4. It is permissible to assign a reasonable weightage for service rendered in rural/tribal areas by in-service candidates for the purpose of determining inter se merit within the class of in-service candidates who have qualified in the Pre-PG test by securing the minimum qualifying marks as prescribed by the Medical Council of India. 5. Women candidates constitute a class by themselves and the provision of relaxed or reduced eligibility criteria by reference to continuous service rendered in rural areas for the purpose of sponsorship by the State Government in specified disciplines which have utility for serving women folk in villages does not suffer from the vice of invidious discrimination." 27. There is another important case viz. HARISH VERMA AND OTHERS Versus AJAY SRIVASTAVA AND ANOTHER (2003) 8 SCC 69). This was with reference to Regulation 9 of the Postgraduate Medical Education Regulations, 2000. Their Lordships held that the Full Bench of the High Court should not have relied on the dissenting opinion of one Judge in DR. PREETI SRIVASTAVA's case by overlooking the majority opinion. It is the law laid down by the Constitutional Bench that is having binding force. Paras 5 & 21 are relevant which read as under: "5. On 29.4.2002 several in-service doctors (i.e. the graduate doctors who were serving under the State of Rajasthan) filed a writ petition laying challenge to the constitutional validity of the first proviso to Regulation 9 and seeking its being declared ultra vires in its applicability to in-service candidates. In the alternative, it was prayed that the first proviso abovesaid be declared as inapplicable insofar the seats meant for in-service candidates in postgraduate medical courses are concerned. Consistently with such declaration it was prayed that the result be declared afresh and that the In-service candidates be declared to have qualified for entrance in PG degree/diploma courses without insisting on the prescribed minimum qualifying marks. Several such writ petitions were filed. Consistently with such declaration it was prayed that the result be declared afresh and that the In-service candidates be declared to have qualified for entrance in PG degree/diploma courses without insisting on the prescribed minimum qualifying marks. Several such writ petitions were filed. It is significant to note that the writ-petitioners before the High Court were all such doctors who were serving in the State services and who had participated in the pre-PG examination but had failed in securing the minimum qualifying marks as prescribed by the first proviso to Regulation 9 and the notification dated 2nd March, 2002. The High Court issued rule nisi and also passed an interim order to the effect that the unfilled seats in the in-service category shall be kept vacant during the pendency of the proceedings. 21. As a consequence, the admissions given to such of the in-service candidates who have secured marks less than the minimum prescribed by Regulation 9 framed by the Medical Council of India are struck down and set aside. The counseling shall have to be done afresh to the extent necessary. We are conscious of the fact that there would be some delay in commencement of post-graduation studies and to some extent the 2002 and 2003 batches would overlap. However, that is a situation which cannot be avoided. It is an inevitable consequence for which the successful candidates for the year 2002 and 2003, i.e. those who will be held entitled for admission in post- graduation courses of studies consequent upon this judgment, cannot be made to suffer for no fault of theirs. It will be for the State of Rajasthan, if necessary then in consultation with the Medical Council of India, to sort out the difficulties and to run the regular courses of the studies." 28. Learned Advocate General relied upon Pre-PG Medical Sanghos Committee v. Dr.Bajrang Soni & others (2001) 8 SCC 694. . In this case when the question with regard to increase of reservation of seats came up for consideration, their Lordships held that if the increase of reservation of seats is reasonable and has sufficient nexus with the larger goal of equalization of opportunities no discrimination or arbitrariness is involved in the special provisions meant to meet a just and appropriate need. However, in the public interest such approach was held as violative of Articles 14 & 15. 29. However, in the public interest such approach was held as violative of Articles 14 & 15. 29. In (2001) 8 SCC 664 STATE OF PUNJAB v. DAYANAND MEDICAL COLLEGE AND HOSPITAL AND OTHERS the question that arose was whether the Government could prescribe minimum qualifying marks? It was held that the marks prescribed by MCI in terms of Entry 66 of List I Seventh schedule cannot be unilaterally diluted by Government or University. It was further held even in case of difficulty, Government ought to approach Medical Council for making appropriate changes. In the said case the move of the State of Punjab lowering minimum qualifying marks to 40% for speciality subjects and doing away with them altogether for basic subjects was held to be contrary to regulations of MCI. While opining positively regarding reservations for socially and economically backward classes their Lordships held balance must be struck by State and MCI in exercising their respective powers. It was held that MCI – a statutory body cannot impinge upon constitutional powers of the State nor can it prescribe standards which would be impossible for a reserved category candidate or even a general category candidate to achieve. 30. We also place reliance on (2011) 8 SCC 441 P.V. INDIRESAN (2) Versus UNION OF INDIA AND OTHERS. Bench referred to ASHOKA KUMAR THAKUR v. UNION OF INDIA (2008) 6 SCC 1. In the said case the Judges were concerned with the standards of excellence in higher education and in the said case consideration was with regard to the fact that OBC's were far better placed economically and socially than SC & ST and therefore, the minimum percentage of marks for OBC's has to be somewhere between minimum marks for SC ST and minimum marks for general category candidates. Ultimately, their Lordships held that cut-off marks of OBC's are to be computed with respect to minimum eligibility marks for the course concerned or qualifying in entrance examination concerned and not with respect to marks secured by last candidate admitted under general category. It was further held that eligible criteria cannot be changed after admission process has commenced. Ultimately, their Lordships held that cut-off marks of OBC's are to be computed with respect to minimum eligibility marks for the course concerned or qualifying in entrance examination concerned and not with respect to marks secured by last candidate admitted under general category. It was further held that eligible criteria cannot be changed after admission process has commenced. Their Lordships held that eligibility marks and qualifying marks are pre-determined and notified in admission Prospectus so that a candidate intending to apply for admission would know what eligibility marks he should possess in qualifying examination or what qualifying marks he should secure if there is entrance examination. It was further held that a factor which is neither known nor ascertained at the time of declaring admission programme cannot be used to disentitle a candidate to admission, who is otherwise entitled for admission. 31. We also refer to 2003 (3) ILR 46 Kerala series DR. JAYAKUMAR, E.K. v. DIRECTOR OF MEDICAL EDUCATION AND OTHERS - where Prospectus refer to reservation of seats for lecturers in certain subjects. Lecturers in nuclear medicine were not included but later Government on directions from the High Court included lecturers in nuclear medicine also in 2001. 32. A similar clause like Cl. XIX of the present Prospectus Ex. P-1 was the subject matter before their Lordships. The clause was XVIII of the Prospectus for the year 2002. In the said case Prospectus for the year 2002 was issued on 26.6.2001 and the last date for submission of application was 30.11.2001. Clause XVIII of the Prospectus came to be amended after the last date for submission of the application. Their Lordships disapproved the said move and held that at least on the last date for submission of the application the candidate should know definitely the criteria for eligibility for admission to the course. If criteria for eligibility for admission after the last date for submission of the application was done, it would lead to arbitrary exercise of power to favour or to prejudice particular candidates depending on the whims and fancies of the authorities concerned. It was further held that to provide equal opportunity to the candidates, to maintain fairness and to avoid arbitrariness in the matter of selection of candidates, it is absolutely necessary that the criterion for eligibility for admission to the course is not changed after the last date for submission of applications. 33. It was further held that to provide equal opportunity to the candidates, to maintain fairness and to avoid arbitrariness in the matter of selection of candidates, it is absolutely necessary that the criterion for eligibility for admission to the course is not changed after the last date for submission of applications. 33. (2008) 7 SCC 11) in the case of Himani Malhotra v. High Court of Delhi is also relied upon. In this case, during the pendency of recruitment Process Rules, the rules came to be changed. Their Lordships held that initially when the minimum marks for the written test were prescribed and not for viva voce, later fixation of minimum marks for the viva voce after written test was over, was improper and erroneous. 34. In Manjusree v. State of A.P (2008) 3 SCC 512 their Lordships held that during pendency of recruitment process criteria for selection by scaling down of marks was unjust and held that such criterion has to be prescribed in advance, and rules of the game cannot be changed afterwards. 35. We also refer to 2009 (4) ILR Kerala series 543 in the case of ASHA P. v. STATE OF KERALA AND OTHERS. In this case their Lordships held that the rules that were in force regarding qualification for the appointment as District Judge has to be the rule which was in force as on the date of issuance of notification. In other words, change subsequent to the notification cannot be taken into consideration as special rule was made by virtue of amendment and is prospective. 36. With the assistance of the law laid down by the Apex Court and High Courts as stated above, one has to see whether Ex. P-3 deserves to be quashed. 37. The regulations framed by the MCI under section 33 with the prior approval of the Central Government are statutory in nature. This is the law declared by the Apex Court in the case of MCI vs. STATE OF KARNATAKA and so also in the case of Dr. PREETI SRIVASTAVA. In more than one case, the Apex Court has opined, medical students require intensive gruelling as doctors have to be competent enough when they come out of college and they are expected to be perfect in the science of treatment of human beings as the country does not want half baked medical professionals coming out of medical colleges. PREETI SRIVASTAVA. In more than one case, the Apex Court has opined, medical students require intensive gruelling as doctors have to be competent enough when they come out of college and they are expected to be perfect in the science of treatment of human beings as the country does not want half baked medical professionals coming out of medical colleges. The standard of education prescribed by MCI cannot be diluted so far as admission to post graduate degree / diploma course. 50% of qualifying marks is still required to be obtained both by in-service candidates and also open quota candidates. If standard of excellence has to be maintained by prescribing 50% minimum qualifying marks for all the candidates irrespective of which channel they come from, whether direct quota candidates or in- service quota candidates, can there be difference in ascertaining standard of excellence. As already stated above, as contended by the learned counsel for the MCI, an expert body like MCI can create disparity so far as qualifying marks in between open category candidates and reserved quota candidates but the said disparity cannot be a big gap. Ultimately the candidates coming from these two different channels must be able to render quality service while rendering medical treatment to the public at large. To secure 50% minimum qualifying marks, common Entrance Examination is prescribed. It is also well settled that Common Entrance Examination cannot be discarded. The purpose of having Common Entrance Test is to ascertain the intellectual quotient of the students to withstand the gruelling of students at post graduate level. The entrance test is only one level below the actual medical training as held in DR. PREETI SRIVATSAVA'S case. To assess and ascertain the intellectual quotient of the students, the only process or method of assessment is common Entrance Examination. 38. According to the 1st respondent State, the withdrawal of qualifying marks is permissible in the light of observations of the Apex Court and such exercise was only with a view to make in-service candidates acquainted with higher academic qualification so as to post them in the rural areas by taking a bond for 10 years. We also note that one year bond is also taken from general candidates. We also note that one year bond is also taken from general candidates. If negative mark was to assess the capability of candidates, if standard of excellence is to be maintained, one has to again look into the capabilities of candidates who have to be given medical training at post graduate level. If the in-service candidates are incapable of reaching the standard, i.e. to acquire minimum qualifying marks, on account of lapse of considerable time from the date of their graduation, would it be possible for them to acquire higher and specialised training in medical field if they are not capable of getting minimum qualifying marks? 39. Then coming to the question of change of Prospectus, the learned Government Advocate relies upon AIR 1997 Ker. 218 -RELLY SUSAN MATHEW v. CONTROLLER OF ENTRANCE EXAMINATIONS, TRIVANDRUM AND OTHERS. According to the learned Government Advocate, having regard to the general clause 19 in the Prospectus, the Government is at liberty to change the terms and conditions of the Prospectus at any time. As per original Prospectus Ex.P-1, there was negative marking for erroneous responses both to open quota candidates and in-service quota candidates. By virtue of Ex.P-3 this was withdrawn so far as in-service candidates. No one can have a second opinion that candidate does not get any right to get admission on the basis of the Prospectus. 40. Reading of clause XIX shows that the Prospectus is subject to modification / addition as may be considered necessary by the Government and issued as executive orders / notification. There is no statutory force so far as the Prospectus is concerned. The Government cannot say because of Clause XIX they have a right to change the rules of the game at any time they want. Even if we presume the Government has power to modify or add to the Prospectus, such action must be a reasonable one without any arbitrariness and it should not suffer from discrimination. As already stated above, though the Prospectus was issued somewhere in December, 2011, till a day before the examination there was no move on the part of the Government to withdraw negative marking for in-service candidates. Everyone concerned must have been taken aback with such sudden decision including some of the in-service quota candidates. Anything sans reasonableness and statutory force cannot be approved. Everyone concerned must have been taken aback with such sudden decision including some of the in-service quota candidates. Anything sans reasonableness and statutory force cannot be approved. Therefore, the argument of the learned Advocate General that Clause XIX empowers withdrawal cannot be accepted. (Our view is supported in earlier decision (2003 (3) ILR KERALA SERIES). 41. The very object of selection process is to identify candidates capable of pursuing intensive medical training at post graduate level. Relaxation of negative marking now conceived under Ex.P-3 cannot be approved as laudable policy of the Government because no positive results can be achieved if laxity creeps in the assessment of the merit of the candidates. If only negative marking is uniformly applied to all the candidates, then only the suitability of the candidate can be said with certainty. Therefore, there cannot be any protection and vast disparity at the entry level. When the need for common entrance test and minimum qualifying marks is absolutely necessary in order to achieve uniformity with reasonable variance in the assemblage of students so far as merit is concerned, the negative marking cannot be allowed. The number of seats allocated to in-service candidates if remains unfilled, they are diverted to open category candidates. 42. The merit in the rank list is to allot more creamy and coveted disciplines to more meritorious candidates. This merit of the candidate is to be ascertained by his performance in the Common Entrance Test. If assessment norms for evaluating the merit of the candidates is different not only the open category but also in-service candidates would be affected. Though there can be intelligible differentia which distinguish persons from the excluded group, but there is no rationale to the object sought to be achieved in the present process. 43. The stand of the State is, dearth of specilised doctors has compelled them to make such move. If the MCI has power to prescribe minimum qualifying marks as determined by experts in the field of medical education, the path or the route i.e. the evaluation process to assess minimum qualifying marks cannot be different. The State or University cannot deviate or meddle with the standard fixed by MCI, when the State and Universities are not entitled to deal with lowering of qualifying marks, equally they are not entitled to deal with the process of assessment or evaluation of merit between two groups of candidates. The State or University cannot deviate or meddle with the standard fixed by MCI, when the State and Universities are not entitled to deal with lowering of qualifying marks, equally they are not entitled to deal with the process of assessment or evaluation of merit between two groups of candidates. If at all such a move has to be done, the expert body like MCI has to be consulted which is apparently absent in the present case. 44. If the Government intends to give weightage to the candidates who work in rural areas, etc. among the in-service candidates inter-se, such weightage can be given. In the absence of uniform criterion, i.e. common yardstick to ascertain the merit of the candidates, definitely one has to opine the action of the State in issuing Ex. P-3 as arbitrary and violative of Article 14. There is hostile discrimination between the two groups of similarly placed candidates. Though Apex Court has no doubt said that lowering of qualifying marks without big disparity is permissible provided expert body like MCI approves, there is no regulation, rule, provision which indicates that there can be different approach to ascertain the ability of the candidates. Withdrawal of negative marking to one group of candidates is nothing but discrimination against another group of candidates. In the light of above observations, we are of the opinion, the writ petitions and the appeal deserves to be allowed. In the result, the writ petitions and the appeal stand allowed. Ex. P-3 dated 18.2.2012 is quashed. The respondent authorities are directed to proceed with the preparation of rank list based on the evaluation as contemplated under Ex. P-1 Prospectus.