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2015 DIGILAW 1644 (RAJ)

Priyanka Gupta v. Dharmendra Kumar Vashistha

2015-09-09

AJAY RASTOGI, PRAKASH GUPTA

body2015
JUDGMENT : Ajay Rastogi, J. Instant intra court appeal has been filed against order of the ld. Single Judge dt.10.6.2015. Before we may take note of the relevant ancillary facts in examining the present controversy, the question which arises in the instant appeal for our consideration is that if the candidates i.e. in open competitive examination held for admission to the Post Graduate Dental (MDS) Courses 2015 against State quota obtained equal marks, their inter se merit is to be determined on the basis of the guidelines laid down by the examining body i.e. (AIIMS) who conducted the examination as per para 12e or as per Ordinance 278-E(iii) of Rajasthan University of Health Sciences. The present appellant and respondent writ petitioner both are In-service candidates and after their regular selection are serving in the Govt. Dental College and appeared in the All India Post-Graduate Dental Entrance Examination, 2015 (for short, 'Entrance Test' conducted by the All India Institute of Medical Sciences, New Delhi (for short, AIIMS) for admission to Post Graduate Dental (MDS) Courses 2015. The Information Bulletin containing Prospectus for All India Post Graduate Dental Entrance Examination-2015 is a complete code in conducting the examination and declaration of merit of the candidates. The result of the Entrance Test was declared by the AIIMS for admission to the Post Graduate (MDS) Course conducted in compliance of the directives of the Hon'ble Supreme Court of India (W.P.)(C) No.348-352/1985 Dinesh Kumar Vs. M.L.N. Medical College, Allahabad & Ors., both secured equal marks and there inter se merit was determined in the order of preference as per para 12e of the Scheme of AIIMS and the candidate having less negative marks being placed higher in order of merit. The AIIMS published eligibility criteria, Syllabus, Scheme of Examination for All India quota and State quota in participating States and also the procedure of conducting the examination and declaration of result and also of preparation of merit list for All India 50% quota and merit list of State quota. The AIIMS published eligibility criteria, Syllabus, Scheme of Examination for All India quota and State quota in participating States and also the procedure of conducting the examination and declaration of result and also of preparation of merit list for All India 50% quota and merit list of State quota. At the same time, it may be relevant to note that the syllabus referred to for holding competitive examination under Para 1 (v) of Information Bulletin of AIIMS indicates method of questions which will be put in the competitive test with special mention that it will be multiple choice questions and each correct answer shall be awarded four marks, at the same time, one mark will be deducted for each wrong answer and if more than one answer indicated against a question it will be deemed as incorrect answer and will be negatively marked and this was the uniform procedure to be followed in holding competitive test for admission against 50% All India quota and State quota in participating State and for admission the State has to apply its reservation policy to the Postgraduate Course provided under O.278E (ii) of University Ordinance. The Prospectus also took note of contingency that if two or more candidates obtained equal marks in the Entrance Examination, their inter se preference will be arranged as per para 12e of the Information Bulletin that indicates the candidates securing less negative marks shall be placed higher in merit and obviously if they have a tie then according to the age older will get preference over younger and that has been followed for All India quota and also for the State quota in participating State and admissions has to be made by following the existing reservation policy of the State and according to the Appendix annexed to the Prospectus there are good number of States who have extended there 50% seats to be filled by Common Entrance Test held by AIIMS and Rajasthan is one of the participating State. When the result of the Entrance Test was declared by AIIMS against State quota of which we are concerned, both the candidates i.e. appellant and respondent writ petitioner secured 415 marks. When the result of the Entrance Test was declared by AIIMS against State quota of which we are concerned, both the candidates i.e. appellant and respondent writ petitioner secured 415 marks. However, inter se merit prepared by the AIIMS as per its procedure the appellant was shown at Serial No.44 and the name of the respondent writ petitioner at No.47 and it is not disputed that the respondent is older in age to the present appellant. After the merit list of the State quota was received, process was initiated by the the State govt. and the provisional merit list of PG Dental In-Service Candidates, dt.23.3.2015 was published in which name of the respondent writ petitioner was shown at No.2 and of the appellant at No.3 being older in age and both are In-service candidates and participated in open general category on the basis of Ordinance 278-E-III (xiii) which provides that in case two or more than two candidates obtained equal marks in the Entrance Examination, inter se merit of such candidates shall be determined in order of preference and according to age older will get preference over younger but indisputably the Entrance Examination was not conducted/held by the examining body in terms of O. 278-E of the University Ordinance. If we look to the procedure adopted by the AIIMS in conducting examination, if candidate indicated more than one answer against a question that will be deemed as incorrect answer and will be negatively marked but under Ordinance 278-E-III (vi) zero mark will be awarded for wrong answer or the question not answered. However, there is no negative marking. Immediately, when the provisional combined merit list of PG Dental In-Service Candidates, dt.23.3.2015 was published, the appellant made a representation to the State govt. However, there is no negative marking. Immediately, when the provisional combined merit list of PG Dental In-Service Candidates, dt.23.3.2015 was published, the appellant made a representation to the State govt. that when the examination has been conducted as per syllabus, guidelines and procedure laid down by the AIIMS and there is a negative marking and merit list of State quota has been prepared accordingly and sent to the respective State by the examining body i.e. AIIMS in terms of instruction and guidelines and that indicates that if two or more candidates secure equal marks in the competitive entrance examination, their inter se merit has to be determined in order of preference as (i) Candidate scoring less negative marks and if this preference is adhered to as referred to in Part-12e of Information Bulletin published by AIIMS, the appellant is entitled to be placed higher in merit over the respondent writ petitioner and the State govt. find justification in her representation and the Provisional merit list was revised on 28.3.2015 and that placed the appellant higher in merit over the present respondent writ petitioner. It may be further noticed that the appellant was placed at 815 rank and the respondent writ petitioner at rank 820 and this revised merit list of In-Service candidates dt.28.3.2015 came to be challenged by the writ petitioner respondent and his bone of contention is that it was the data being furnished by the examining body i.e. AIIMS in the instant case and the merit list of the candidates who were declared successful in the examination held has to be prepared in terms of Ordinance 278-E-III of the University Ordinance which is applicable against the State quota seats for admission and merely because competitive examination is being held by AIIMS that may not have any relevance as regard preparation of merit list and admission to the Postgraduate course and Ordinance 278-E-III (xiii) provides that if two or more candidates secured equal marks in Competitive Examination while preparing merit list older will get preference over younger and the respondent being older in age over the present appellant, he is entitled to be placed higher in order of merit and his contention was accepted by the ld. Single Judge under order impugned dt.10.6.2015 which is subject matter of challenge in the intra court appeal. Single Judge under order impugned dt.10.6.2015 which is subject matter of challenge in the intra court appeal. The bone of contention of counsel for the appellant is that when the competitive examination is being held for admission to the Postgraduate MDS Course by AIIMS and its procedure provides a complete mechanism including eligibility criteria, syllabus of AIPGDEE-2015 and Scheme of Entrance Examination for All India quota and State quota in participating State and to draw the merit list under Para-12b & 12c of All India 50% quota & State quota of participating State with a clarification in meeting out the exigency that in a situation where two or more candidates obtained equal marks in the Entrance Examination as per 12e of AIIMS inter se merit has to be determined in order of preference and at the first instance candidate secured less negative marks has to be given preference and if still remains a tie the second option in the descending order is the age and older will get preference over the younger and both the candidates in the instant case participated and have undergone the procedure which has been prescribed by AIIMS and have negative marking obviously inter se merit has to be determined in order of preference based on scoring less negative marks in terms of para-12e of the Information Bulletin the merit list was published and sent by the AIIMS to the State govt. in filling State quota, the State govt. does not hold any authority to change the merit list. However, admissions are to be made as per merit list sent by the examining body i.e. AIIMS keeping in view the reservation policy to the Post Graduate Dental (MDS) Courses against State quota provided under O.278EII of University Ordinance. Mr. Ashok Gaur, Sr. Adv. submits that the ld. does not hold any authority to change the merit list. However, admissions are to be made as per merit list sent by the examining body i.e. AIIMS keeping in view the reservation policy to the Post Graduate Dental (MDS) Courses against State quota provided under O.278EII of University Ordinance. Mr. Ashok Gaur, Sr. Adv. submits that the ld. Single Judge has committed serious error in holding that merit list has to be prepared in terms of Ordinance 278-E-III of the University Ordinance and submits that if the examination is being held under syllabus and procedure laid down under Ordinance 278-E by the examining body certainly the procedure of merit has to be adopted as prescribed under Ordinance 278-E but if the competitive examination is being held by AIIMS as in the instant case merit of the candidates has to be published according to its procedure and Ordinance 278-E-III has no application for preparation of merit of the candidates and further submits that in the procedure laid down by the AIIMS for holding competitive examination there is a negative marking but in the examination which is to be held under Ordinance 278-E-III there is no negative marking and this what the Govt. on her representation considered and revised the provisional inter se merit on 28.3.2015 and thus the ld. Single Judge has committed error of law in holding that the merit list of Entrance Examination even if it has not been held under Order 278-E-III still inter se merit has to be prepared of the candidates under the said Ordinance and older will get preference is not legally sustainable and requires to be interfered by this Court. Counsel further submits that as per the order of merit vide office order dt.5.6.2015, the present appellant was admitted to Pedodontics and the respondent writ petitioner was admitted in Oral Pathology and the judgment was pronounced by the ld. Single Judge dt.10.6.2015 and since the respondent held higher in inter se merit, the respondent was shifted from Oral Pathology to Pedodontics vide order dt.11.6.2015 during vacation and thus no option left with her than to join on 12.6.2015 under protest in Oral Pathology. The State govt. supported the case of the present appellant and Mr. Single Judge dt.10.6.2015 and since the respondent held higher in inter se merit, the respondent was shifted from Oral Pathology to Pedodontics vide order dt.11.6.2015 during vacation and thus no option left with her than to join on 12.6.2015 under protest in Oral Pathology. The State govt. supported the case of the present appellant and Mr. SK Gupta AAG submitted that since the examination was held by AIIMS according to its procedure and that is a complete code in itself and merit was prepared by AIIMS against State quota of participating States and para 12e clearly stipulates that if the candidates secured equal marks in combined competitive examination, the person who get lesser negative marks shall be placed higher in order of merit and the Govt. find justification in the contention advanced by the appellant Dr. Priyanka Gupta and accordingly revised the Provisional combined merit list of PG Dental In-Service candidates on 28.3.2015 and under order of the ld. Single Judge impugned herein re-revised it accordingly. Mr. Gupta, AAG, counsel for the State further submits that State govt. is of the view that if the competitive examination has been conducted as in the instant case by the AIIMS, its rules and regulation as regard preparation of merit list, has to be adhered to and University Ordinance 278-E-III may apply if the examination has been conducted under University Ordinance however, the admissions shall be made keeping in view the reservation policy of the State govt. Mr. Angad Mirdha, Adv. appearing for Dental Council of India submits that the Revised MDS Course Regulations, 2007 has been notified in exercise of power conferred under the Dentists Act, 1948, and role of the Dental Council of India is limited in maintaining minimum standards & guidelines laying down the conditions of eligibility, mode of selection and period of training and submits that he has instructions to inform that in regard to the present controversy Dental Council of India has no role to play. The only contesting respondent is the writ petitioner no.1-respondent and while supporting the order of the ld. The only contesting respondent is the writ petitioner no.1-respondent and while supporting the order of the ld. Single Judge counsel submits that as regards the merit is concerned, data of successful candidates against State quota was made available by the examining body i.e. AIIMS and as regards admission & policy of reservation is concerned, it is for the State to prepare the merit list under Ordinance 278-E-III and O. 278-E-III (xiii) clearly indicates that if two or more candidates secure equal marks their inter se merit has to be prepared according to age and older will get preference over younger and further submits that the criteria laid down by AIIMS under para 12e of the Information Bulletin in particular is not applicable in the instant case and that may apply for admission to All India quota and not the State quota and submits that the ld. Single Judge has considered and examined the scheme of the AIIMS & also of the University Ordinance and 278-E-III in particular and no error has been committed which may require any interference of this Court and submits that in compliance of order of the ld. Single Judge impugned dt.10.6.2015, order has been passed by the respondent State dt.11.6.2015 and both have admitted in the respective subjects against In-service quota and any order passed by this Court may disturb their studies and further submits that Hon'ble Supreme Court in the judgment reported in 1989 Supp( 2) 428 has fixed the dead line for admission upto 10th June of the year and submits that even if this Court comes to the conclusion that inter se merit was to be prepared in terms of procedure laid down by AIIMS in its Information Bulletin still in view of the dead line fixed by Hon'ble the Supreme Court the same cannot be given effect to. Counsel further submits that all the examining body all over India has different schemes like State of Karnataka & Other States. According to the Prospectus of AIIMS under Information Bulletin, the Entrance Test held for All India Post-Graduate Dental Entrance Examination, 2015 for admission to Postgraduate Course and every State has its own procedure for admission to the Post Graduate Courses and this what the ld. Single Judge has considered at length and submits that still if two views are possible this Court may not like to interfere in the order of the ld. Single Judge has considered at length and submits that still if two views are possible this Court may not like to interfere in the order of the ld. Single Judge in the facts of the instant case. We have heard counsel for the parties and with their assistance examined the material on record. Before we may proceed to examine the question, consider it appropriate to first take note of the relevant scheme of AIIMS, New Delhi who has conducted the Entrance Test for admission to Postgraduate MDS Course 2015. According to the Prospectus under Information Bulletin published by the AIIMS at the very introduction, the Entrance Examination has been conducted in compliance of directives of the Hon'ble Supreme Court of India (W.P.)(C) No.348-352/1985 Dinesh Kumar Vs. M.L.N. Medical College, Allahabad & Ors. and entrance examination will be governed by the rules and regulations specified by the Government of India, Ministry of Health and Family Welfare, New Delhi and the respective States who had given their consent to get their State quota seats filled by examining body i.e. AIIMS in the instant case. The competitive examination was held for All India quota and State quota of participating State who consented to get their State quota filled by AIIMS, New Delhi. Indisputably, the State of Rajasthan has consented over its State seats and admissions to the MDS Course, syllabus, eligibility criteria, procedure of conducting examination, holder of merit which obviously has to be in conformity with the Regulation 2007. Clause-(1)(v) of the Information Bulletin provides Syllabus-AIPGDEE 2015 laying down standard and subject for holding entrance examination, prescribing how the marks is to be awarded to the question attempted by the candidate. Clause-(1)(v) of the Information Bulletin provides Syllabus-AIPGDEE 2015 laying down standard and subject for holding entrance examination, prescribing how the marks is to be awarded to the question attempted by the candidate. Part-2 prescribed Scheme of Entrance Examination for All India Quota & State Quota in participating States and such of the candidates who have participated in the Combined Competitive Examination their result has to be declared with their rank numbers who figured in the merit list and merit for All India 50% quota and merit list for seats under State quota is to be prepared of successful candidates on the basis of score obtained by the students of each State in AIPGDEE and to meet out the exigency in case two or more candidates obtained equal marks in entrance examination, their inter se merit has to be prepared in order of preference and the guiding principle is that the candidate scoring less negative marks shall be given preference over the other and still there remains a tie the older get a preference over the younger candidate and thereafter the procedure has to be followed for admission according to the reservation policy of the respective State as per O.278EII of University Ordinance as noticed under Clause-13 of the Information Bulletin. We consider appropriate to quote the relevant clauses of Information Bulletin- Part-1 (v) SYLABUS – AIPGDEE- 2015 (a) The syllabus for the all India Post Graduate Dental Entrance Exam for admission to the MDS courses shall be that of BDS standard and shall cover all the subjects/syllabus taught during the BDS course as prescribed in the DCI. Revised BDS Course Regulations, 2007 as amended from time to time. There will be only one paper of 3 hours duration (10.00 A.M. to 01:00 P.M.) containing 200 MCQ's consisting of Basic Sciences, Para-Clinical and Clinical subjects. (b) The questions will be single answer objective type. Each answer with correct answer shall be awarded four marks. One mark will be deducted for each wrong answer. Zero mark will be given for the questions not answered. More than one answer indicated against a question will be deemed as incorrect answer and will be negatively marked. (b) The questions will be single answer objective type. Each answer with correct answer shall be awarded four marks. One mark will be deducted for each wrong answer. Zero mark will be given for the questions not answered. More than one answer indicated against a question will be deemed as incorrect answer and will be negatively marked. Part-2- “SCHEME OF ENTRANCE EXAMINATION – ALL INDIA QUOTA & STATE QUOTA IN PARTICIPATING STATES The scheme for selection of candidates for admission to 50% postgraduate Dental courses for admission to MDS Courses on all-India basis shall be applicable to all Government Dental Colleges/Institutions throughout the country and no Dental College/Institution shall hereafter conduct competitive entrance examination of its own for these seats on all India basis, except the States of Jammu & Kashmir and Andhra Pradesh. However, the students having passed their BDS examination from any Institution in these two States shall not be eligible to participate in the 50% All India Post Graduate Dental Entrance Exam for selection of candidates against All India Quota seats. In case of, candidates who were nominated by the Government of India to do BDS from Dental Colleges in Andhra Pradesh and Jammu & Kashmir shall be eligible to apply for admission under All India Quota, subject to submission of a bond on a Non-Judicial Stamp Paper of Rs. 10/-to this effect. A copy of the nomination letter must be attached with the bond. Part-12 b- Merit List for 50% seats under All India Quotas: The merit list of the eligible and successful candidates who have opted for 50% All India quota seats and appeared in the AIPGDEE will be prepared by the AIIMS on the basis of the scores as mentioned above, obtained in the AIPGDEE. The merit list will be equal to the number of seats available for allotment in MDS courses under 50% All India Quotas. There shall also be a waiting list equal to 4 times of the merit list. The list of successful candidates (Merit List/ Waiting List) shall be forwarded to the Medical Counseling Committee (Medical Examination Cell), Ministry of Health and Family Welfare, Government of India for the purpose of allotment of seats by Online Counseling. 12c. There shall also be a waiting list equal to 4 times of the merit list. The list of successful candidates (Merit List/ Waiting List) shall be forwarded to the Medical Counseling Committee (Medical Examination Cell), Ministry of Health and Family Welfare, Government of India for the purpose of allotment of seats by Online Counseling. 12c. Merit list for seats under state quota: Based on the information in respect of State Code of Eligibility and Domicile filled in by the candidate in the application form, AIIMS, New Delhi will prepare state level merit lists of successful Candidates on the basis of the score obtained by the students of each state in the AIPGDEE. The list of successful candidates from each State/UT shall be forwarded to Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi for onward transmission to the Directorate of Medical Education of the State/UT concerned for the purpose of allotment of seats by online counseling/ personal appearance subject to applicable laws prevailing in the State/UT. 12e. In case of two or more candidates obtaining equal marks in the competitive entrance examination, their inter se merit will be determined in order of preference as under: (i) Candidate scoring less negative marks. (ii) According to age, older will get preference over younger.” Part-13. Admission And Reservation- An All India merit list and State wise merit list of the qualified candidates shall be prepared on the basis of the percentage of marks obtained in the All India Post Graduate Dental Entrance Exam and candidates shall be admitted to Dental MDS courses from the said lists only by following the already existing Reservation Policies. All admission to Dental MDS Courses within the respective categories shall be based solely on merit based on percentage of marks obtained in the All India Post Graduate Dental Entrance Exam”. The Scheme which has been laid down by AIIMS for holding entrance examination 2015 is a complete code in itself. All admission to Dental MDS Courses within the respective categories shall be based solely on merit based on percentage of marks obtained in the All India Post Graduate Dental Entrance Exam”. The Scheme which has been laid down by AIIMS for holding entrance examination 2015 is a complete code in itself. Apart from eligibility criteria which obviously has to be in terms of MDS Course Regulation 2007, the syllabus for Entrance Examination for All India and for State quota in participating States is common and the candidates were made known of this fact that each question will have single answer objective type and correct answer shall be awarded four marks and one mark will be deducted for each wrong answer, at the same time, if more than one answer indicated against a question it will be deemed as incorrect answer and will be negatively marked and the students have participated in the examination with open eyes that there answer scripts shall be evaluated by the examining body on such standards and after results are declared the merit list under State quota of participating States are sent to the respective States and inter se merit of two or more candidates get equal marks in the competitive entrance examination to determine the order of preference and candidate scoring less negative marks has to be placed higher in order of merit and obviously in the descending order if still their remains a tie the second option to prepare the inter se merit list is according to age and older will get preference over younger as per para 12e and after merit is being prepared for seats against State quota admissions are to be made as per the reservation policy of the State where the AIIMS as the examining body has no role to play. Indisputably, in the instant case, the combined competitive examination for All India quota & State quota of participating States is held by the AIIMS for admission to Postgraduate MDS Course 2015 and there being a negative marking and both secured equal marks, indisputably the appellant scored less negative marks and in terms to para 12e she was placed higher in merit and that is the procedure which has been followed by the AIIMS for preparing merit list under State quota of participating States and accordingly the merit list was revised by the Govt. vide communication dt.28.3.2015. vide communication dt.28.3.2015. At the same time, we also took note of Ordinance 278-E-II which relates to MD/MS and MDS Examinations provides reservation and O.278-E-III lays down Scheme of Examination and O.278-E-III (iv) provides Subject-wise distribution of questions for Pre-PG Entrance Examination for MD/MS courses. Clause (vi) of O.278-E-III indicates that each answer with correct response shall be awarded one mark. Zero mark will be given for wrong answer or the question not answered but there will be no negative marking and Clause (vii) provides all questions will be of objective type and each section will contain 100 questions and keeping the contingency that if in a case where two or more candidates secure equal marks in the entrance examination, the inter se merit of such of the candidates shall be determined in order of preference as provided under Ordinance 278-E-III (xiii) however, part-1 may not apply in the instant case and according to para-2 the older will get preference over the younger. It will be appropriate to quote the extract of Ordinance 278-E-II & III relevant for our purpose as under:- (II) (Reservation) (a) 50%of the total seats (irrespective of the other reservations made here under) will be filed in as per allocations made by the Director General of Health Services, Government of India, New Delhi on the basis of the result of All India Competitive Entrance Examinations(s) for admission to P.G. Course (MD/MS/MDS) on open merit. (b) 50% of the seats, after excluding the seats to be filled in as per allocation made by the Director General of Health Services, Govt. of India, New Delhi as mentioned in clause (a) above shall be reserved for in-service candidates of Rajasthan State Medical Services in the various specialties as determined and fixed from time to time by the State Government out of which 16% seats shall be reserved for in-service natural born Scheduled Caste candidates, 12% for natural born Scheduled Tribe candidates, 21% for candidates from Other Backward Classes (below creamy layer) and 1% for candidates from Special backward Classes (below creamy Layer) as per roster system to be notified by the State Government from time to time. At least 25% seats shall be filled in each category with women candidates. 3% seats shall be filled on merit-cum-priority horizontally with candidates having locomotor disability of lower limbs as per MCI Regulations. At least 25% seats shall be filled in each category with women candidates. 3% seats shall be filled on merit-cum-priority horizontally with candidates having locomotor disability of lower limbs as per MCI Regulations. The Certificate regarding permanent physical disability including the percentage, issued by the Medical Board duly constituted by the State Government for the purpose will only be considered. (c) The remaining seats shall be called “non-service seats”. 16% of these seats shall be reserved for natural born Scheduled Caste candidates, 12% for natural born Scheduled Tribe candidates, 21% for candidates from Other Backward Classes and 1% for candidates from Special backward Classes to be filled by roster system notified by the State Government. At least 25% seats shall be filled in each category with women candidates. 3% seats shall be filled on merit-cum-priority horizontally with candidates having locomotor disability of lower limbs as per MCI Regulations. The Certificate regarding permanent physical disability including the percentage, issued by the Medical Board duly constituted by the State Government for the purpose will only be considered. O.278-E-III (Selection of Candidates) (i) The Pre-PG Medical/Dental Entrance Examinations shall be of the standard of MBBS/BDS Examination of Rajasthan University of Health Sciences and shall cover all the subjects of the MBBS/BDS Course respectively. (ii) The examination shall be conducted in English medium only. (iii) There will be one online/offline Entrance Examination of three hours duration. There shall be two sections, each containing 100 multiple choice questions. Section I will consist of Pre-Clinical and para-Clinical subjects and Section II will consist of clinical subjects. (iv)Subject-wise distribution of questions for Pre-PG Entrance Examination for MD/MS courses is given below: Section-I No. of Question Section-II No. of Question Antomy 10 Medicine 15 Physiology 10 Surgery 15 Biochemistry 10 Pediatrics 10 Biophysics 5 Obstetrics & Gynae. Section I will consist of Pre-Clinical and para-Clinical subjects and Section II will consist of clinical subjects. (iv)Subject-wise distribution of questions for Pre-PG Entrance Examination for MD/MS courses is given below: Section-I No. of Question Section-II No. of Question Antomy 10 Medicine 15 Physiology 10 Surgery 15 Biochemistry 10 Pediatrics 10 Biophysics 5 Obstetrics & Gynae. 10 Pharmacology 15 Ophthalmology 10 Pathology 15 Orthopedics 5 Microbiology 15 ENT 5 Forensic Medicine 5 Anesthesia 5 Preventive & Social Medicine 15 Dermatology & Venereology 5 Radio diagnosis Psychiatry 10 Radiotherapy 5 Subject-wise distribution of questions for Pre-PG Entrance Examination for MDS courses give as below- Section-I No. of Question Section-II No. of Question Anatomy 7 Periodontics 15 Physiology 7 Oral Surgery 15 Dental Materials 10 Oral Diagnosis, Medicine & Radiology 10 Pharmacology 10 Prosthetics 20 Pathology 7 Periodontics 10 Microbiology 5 Orthodontics 10 Dental Anatomy Histology 10 Conservative Dentistry 20 Community Dentistry 12 12 10 10 (v) Deleted (vi) each answer with correct response shall be awarded one mark. Zero mark will be given for wrong answer or the question not answered. There will be no negative marking. (xiii) In case of two or more candidates obtaining equal marks in the entrance examination, the inters se merit of such candidates shall be determined in order of preference as under:- (i) Candidates obtaining higher marks in Section-II shall be placed above the candidate obtaining lesser marks therein. (ii)In case (1) above does not apply then according to age, older will get preference over younger. (iii)If, after applying criteria (1) and (2) above, the merit of two or more candidates is at par, then the number of attempts for passing Final MBBS/BDS examinations will be considered. The candidate with lesser number of attempts for passing Final MBBS/BDS examinations will get preference over the other. (iv) Even after applying criterion (3), if the merit of two or more candidates is at par, then the aggregate marks of the candidates in Final MBBS/BDS examinations will be considered. The candidate with higher aggregate marks in Final MBBS/BDS examinations will get preference over the other. (iv) Even after applying criterion (3), if the merit of two or more candidates is at par, then the aggregate marks of the candidates in Final MBBS/BDS examinations will be considered. The candidate with higher aggregate marks in Final MBBS/BDS examinations will get preference over the other. If the Entrance Examination would have been conducted as per the Scheme of Examination provided under O.278E-III (iv) of the Ordinance the inter se merit list of the candidates secured equal marks indeed has to be prepared in terms of O.278E-III (xiii) of the Ordinance and admissions are to be made keeping in view the policy of reservation in terms of O.278E-II of the University Ordinance. In the instant case after taking note of Scheme of Examination which is being conducted by All India Institute of Medical Sciences for Admission to Postgraduate courses students who have participated for All India quota and State quota in participating States, the examination pattern and syllabus is one and same and those who finally declared qualified in the competitive examination their merit list of 50% for All India quota and State quota in participating States have been separately prepared under clause 12b & 12c respectively and 12e took note of the exigency and if two or more candidates obtained equal marks preference has been given to a candidate who secure less negative marks and still if there remains a tie the older in age get a preference over younger but that stage has not arisen in the instant case. We find substance in the submission made by counsel for the appellant that determination of merit and admission to the Post Graduate MDS Course according to the policy of reservation are two different concepts but are inter related. We find substance in the submission made by counsel for the appellant that determination of merit and admission to the Post Graduate MDS Course according to the policy of reservation are two different concepts but are inter related. As regards merit is concerned, it is being prepared by the examining body in terms of its Scheme of Examination and after the merit list is sent to the state govt., admissions are made keeping in view the policy of reservation as existing in the respective States and in our considered view the candidates who have participated for admission to the MDS course 2015 conducted by AIIMS their merit has been rightly prepared in terms of part-12c of the Information Bulletin and the inter se merit of the candidates who secured equal marks has been drawn under para 12e of the Bulletin and admissions are to be made as per the reservation policy of the State govt. as envisaged u/O.278-E-II and as regard Ordinance 278-E-III on which much reliance was placed and considered by the ld. Single Judge, in our considered view, leave no doubt that Ordinance 278-E-III of the University is also a complete code for selection of MD/MS And MDS Courses provided the Entrance Examination is held in terms of Ordinance 278-E-III of the University Ordinance and it can be noticed that If the Entrance Examination would have been conducted as per the Scheme of Examination envisaged under O.278E-III (iv) of the Ordinance there will be no negative marks and if two or more candidates secure equal marks their inter se merit has to be determined under O.278E-III (xiii) and candidates secured higher marks in Section II shall be placed above the candidate obtaining lesser marks and if their remains a tie their inter se merit as of second option has to be determined according to the age and older will get preference over younger. Indisputably, in the instant case, since the entrance examination has not been held under Ordinance 278-E-III in our considered view O. 278-E-III for selection of candidates, that may not have any application and Clause-xiii of O.278-E-III(xiii) could not be invoked for determining the inter se merit of the candidates secured equal marks in the competitive examination held by AIIMS and merit list for seats under State quota was rightly prepared by the authorities in terms of Clause12c read with 12e of Information Bulletin published by the AIIMS and as we have already observed that admissions of the selected candidates in the order of merit are to be made keeping in view the reservation policy of the State indicated O.278E(ii)(b) of the University Ordinance. We further find substance in the submission made by the appellant that there is no conflict in O.278E(iii) and the Scheme of examination published by the examining body and these are self styled procedure for holding competitive examination prescribed under their schemes by AIIMS/University under Ordinance 278-E-III laying down the procedure for selection of candidate for holding MD/MS Entrance Examination according to their syllabus & procedure of conducting examination and obviously if the entrance examination would have been held as observed by us under O. 278-E-III indeed the procedure as laid down under the Ordinance has to apply and O.278E-III(xiii) could have been invoked to determine the inter se merit of the candidates but in the case where the examination has been held by another examining agency like AIIMS in the instant case under its Scheme of Examination and procedure laid down in our considered view the inter se merit of the candidates who secured equal marks has to be prepared as provided under Clause-12e and the candidates securing less negative marks deserves to be placed higher in order of preference and we find no error in the decision making process adopted by the respondents which may require any interference. The submission made by the counsel for respondent Mr. The submission made by the counsel for respondent Mr. Rajendra Soni that the data was sent by AIIMS of State quota and merit was to be prepared in terms of Ordinance 278-E-III and inter se merit of the candidates published was adhered to in terms of O.278-E-III (xiii) and older is being placed higher in order of preference, in our view is of no substance for the reason that the Information Bulletin of which we have given detail reference, Clause-12c authorized the examining body to prepare the merit list for seats under State quota of the participating States and there being a negative marking in the scheme of examination the candidate who had participated in the Open Competitive Examination for admission to MD Course 2015 secured less negative marks has to be given preference and be placed higher in inter se merit and it was not the data which was sent to the State Govt. and this what has been accepted even by the State govt. that it was the merit list of State quota sent by the examining body (AIIMS) and the role of State is to apply its reservation policy while admitting students to the Post Graduate MDS Courses 2015. Further submission made by the counsel for the respondent that after the cut off date 10.6.2015, no orders could have been passed by this Court may not of any substance for the reason that the admissions were initially made by the State govt. on 5.6.2015 as per the inter se order of merit prepared under para 12e of the Information Bulletin published by the AIIMS but that was superseded in the light of judgment of this Court dt.10.6.2015 and on 12.6.2015 the appellant joined under protest this Court is of the view that the judgment of the ld. Single Judge dt.10.6.2015 being not sustainable we find no difficulty to restore the admissions inter se of the appellant and the respondent as it was existing prior to the order passed by the ld. Single Judge dt.10.6.2015 and apart from, it is informed to this Court that first Semester of both the subjects allotted to the candidates is one and same and either of them is not going to suffer for the period of studies rendered in the subjects in compliance of order of the ld. Single Judge dt.10.6.2015. Single Judge dt.10.6.2015 and apart from, it is informed to this Court that first Semester of both the subjects allotted to the candidates is one and same and either of them is not going to suffer for the period of studies rendered in the subjects in compliance of order of the ld. Single Judge dt.10.6.2015. Before parting with the judgment, we also find prima facie justification that when the selections are held through Open Competitive Examination based solely on merit, it has to be given its due weightage & preference. It is indeed for the State/authority in taking its decision how the inter se merit is to be assigned to the candidates if two or more candidates secured equal marks but when selections are held through a competitive examination to adjudge the talent and academic excellence of the candidates in such competitive perspective & when there is neck to neck contest the question to be considered is how far it may have any relevance in adhering to while preparing inter se merit of the candidates based on their date of birth or age in which the candidate has no contribution and has no nexus in adjudging academic excellence & talent of the candidate and to our mind in determining inter se merit of the candidate/student who secured equal marks as far as possible must be placed at the bottom and be the last available resort in the descending order for adjudging the inter se merit. However, the admissions are to be made against the seats of State quota by the State govt. in accordance with its reservation policy envisaged under O.278E-II of the University Ordinance & noticed by the AIIMS in Clause 13 of the Information Bulletin. The appeal deserves to succeed and is hereby allowed and the judgment of the ld. Single Judge dt.10.6.2015 is quashed and set aside & as a consequence thereof, the order passed by the State Govt. dt.11.6.2015 is also quashed and the respondents are directed to restore back the order dt.5.6.2015. No cost.