ORDER 1. Petitioners are Doctors and in service candidates in the State of Karnataka, who have assailed Notification bearing No.HFW.78.RGU.2015 dated 11/03/2015 (Annexure “E” to the writ petitions), issued by the first respondent insofar as it amends Rule 5A of Karnataka Conduct of Entrance Test for Selection and Admission to Post Graduate Medical, Dental Degree and Diploma Courses Rules, 2006 (hereinafter, referred to as “the PGET Rules, 2006” for the sake of convenience). They have also sought a direction to prepare the final select list of in service candidates in respect of “Post Graduate Entrance Test – 2015” (“PGET” for short), in terms of the unamended, Rule 5A, which existed prior to the impugned notification. FACTUAL MATRIX: 2. Petitioners and private respondents had applied as in service candidates and have taken entrance examination for pursuing Degree or Diploma Courses in Medicine. A certain percentage of total seats have been reserved for in service candidates and in fact, their admission to said courses is by a separate channel, which has been approved by the Hon’ble Supreme Court in State of Madhya Pradesh v. Gopal D. Thirthani, (2003) 7 SCC 83 . 3. According to the petitioners, prior to PGET Rules, 2006, the State Government had issued Karnataka Medical Education (Deputation of in service candidates to Post Graduate Super Speciality Courses) Rules, 2006 (hereinafter, referred to as “the Deputation Rules”). Under those Rules, definition of in service candidates and their eligibility was prescribed but subsequently, the PGET Rules, 2006 have been enforced. Petitioners, who are recruited as Doctors in the years 201011 are working as General Duty Medical Officers. They have completed three years of regular service and being eligible to take the entrance examination conducted by National Board of Examinations (NBE), had appeared for the Examinations between 01/12/2014 and 06/12/2014. The results were declared on 15/01/2015. On 18/02/2015, State Government notified the provisional select list of in service candidates along with a Circular of that date, a copy of which has been produced as Annexure “D”. In fact, on declaration of the marks obtained by the in service candidates in the entrance examination, State Government had to award marks by way of service weightage and prepare the final merit list of in service candidates, in terms of Notification dated 18/01/2011 by which, Rule 5A was inserted to PGET Rules, 2006. In fact, on declaration of the marks obtained by the in service candidates in the entrance examination, State Government had to award marks by way of service weightage and prepare the final merit list of in service candidates, in terms of Notification dated 18/01/2011 by which, Rule 5A was inserted to PGET Rules, 2006. Under Rule 5A of the said Rules, weightage of four marks for each completed year of service, beyond five years of service was to be added to the marks secured in the entrance test, subject to maximum of thirty marks, insofar as in service candidates are concerned, if those candidates had secured minimum qualifying marks. But insofar as the current process of selection is concerned, after announcing the marks obtained by the in service candidates in the entrance test, Rule 5A was not applied for the purpose of preparing the final merit list and instead on 11/03/2015, the State Government issued impugned Notification amending Rule 5A. By that amendment, instead of words “four marks for each completed year of service, beyond five years shall be added to the marks secured in the entrance test, subject to maximum of thirty marks”, the words “two percent of the maximum marks of the entrance examination for each completed year of service beyond five years of service shall be added to the percentage of marks secured in the entrance examination test, subject to a maximum of fifteen percent of the maximum marks of the entrance examination” have been substituted. The proviso to Rule 5A as it stood pursuant to the 2011 amendment was also amended. A copy of the Notification dated 11/03/2015 is annexed as Annexure “E” to the writ petition. Pursuant to the amended Rule, the first respondent issued another provisional list on 16/03/2015. 4. It is the case of the petitioners that pursuant to the amended Rule, the inter se merit of the in service candidates has been totally altered inasmuch as those candidates, who were higher in merit and who would have continued to remain in a meritorious position had previous Rule 5A of the PGET Rules, 2006 been made applicable, have now lost their merit and their ranking would now be lower down in the list of meritorious candidates on account of applicability of Rule 5A, as amended by Notification dated 11/03/2015. On publication of the second provisional list, petitioners made representation to the respondents as per Annexure “G, H, J, K, L and M”. The grievance of the petitioners is that the respondents have not considered their representations and instead, on the basis of the illegal amendment made to Rule 5A on 11/03/2015, have prepared the final select list on 20/03/2015. Assailing Rule 5A of PGET Rules, 2006 as amended on 11/03/2015 as well as the final select list, petitioners are before this Court. 5. By interim order dated 26/03/2015, this Court stayed the operation of the Notification dated 11/03/2015 at Annexure “E” and all further proceedings pursuant thereto, for a period of four weeks. Contending that the State Government has given an undertaking to Hon’ble Supreme Court by which, the entire process of admission to the Post Graduate Medical Degree and Diploma Courses must be completed in time and as per the schedule submitted to the Hon’ble Supreme Court, State has filed an application for vacating the interim order dated 26/03/2015. 6. In the application, it has been contended that amendment to Rule 5A was brought about, as the pattern of examination was changed. As compared to the previous year, wherein the total marks fixed in the entrance test was 800, for this academic year, it has been enhanced to 1500. In fact, in 2011, total marks prescribed was only 200. At that time, weightage of 4 marks (i.e., 2%) for each completed year of service and maximum of 30 marks (i.e., 15%) was prescribed. During the year 201415, NBE prescribed total marks as 800 and for the current year, it has been enhanced to 1500, which is 7.5 times more than what was prescribed in the year 2011. Thus, maximum marks of 30, prescribed in 2011 has been multiplied 7.5 times, to make it 225 i.e., 15% of the maximum marks in the entrance examination and that there is no change in the weightage being awarded to in service candidates. It has also been stated that those Doctors, who were serving in the rural areas for more number of years would be given greater weightage in terms of percentage of marks obtained in the entrance test and therefore, proviso to Rule 5A has also been accordingly amended and that the amendment is in no way arbitrary or illegal. It has also been stated that those Doctors, who were serving in the rural areas for more number of years would be given greater weightage in terms of percentage of marks obtained in the entrance test and therefore, proviso to Rule 5A has also been accordingly amended and that the amendment is in no way arbitrary or illegal. In substance, it has been contended that what has been changed is only award of marks on the basis of percentage by way of weightage to in service candidates rather than, marks as such and that the petitioners can have no grievance about it. It is also contended that merit list has been prepared on the basis of the amended rule and that merely because merit of the petitioners has taken a rout on account of the amended Rule 5A, the same cannot be assailed by them. It has also been contended that any interference by this Court at this stage, would upset the schedule of selection of candidates for admission to Post Graduate Courses submitted by the State Government to the Hon’ble Supreme Court and therefore, the State has sought for vacating interim order dated 26/03/2015. 7. In response to that application, petitioners have filed objections contending that the defence set up by the State is untenable and unsustainable, as the amendment has been made in the midst of the selection process, which is contrary to norms of selection. It has been pointed out that the selection process for admission to Post Graduate Courses was commenced on 08/08/2014. The examination was held between 1st to 6th December, 2014 and the results were declared on 15/01/2015. That in the Brochure issued by the NBE, it was indicated that the total marks would be 1500 and it was known to the in service candidates that the maximum weightage was 30 marks, on the basis of the existing Rule 5A. The candidates appeared for the entrance test and the provisional marks list was notified by NBE. On the basis of existing Rule, publication of the provisional marks list was made. On noticing that certain persons had secured lower ranking, State Government has devised the method of upgrading their merit by the impugned amendment made to Rule 5A. The method of awarding weightage by marks has been changed by awarding weightage by percentage of marks based on total marks in the entrance exam. On noticing that certain persons had secured lower ranking, State Government has devised the method of upgrading their merit by the impugned amendment made to Rule 5A. The method of awarding weightage by marks has been changed by awarding weightage by percentage of marks based on total marks in the entrance exam. As a result, in the midst of the selection process, the norms of selection has been altered and thus, inter se merit of the candidates has totally changed. That the amendment has not been made on account of the State Government not noticing the fact that the total marks was 1500 this year, as has been sought to be justified. That by adopting the method of awarding percentage of total marks, being maximum fifteen percent, by way of weightage to in service candidates would mean that the maximum increase of marks by way of weightage would be 225 marks. This affects the inter se merit of the in service candidates. The amendment at best could have been applied for the next academic year and not for the current academic year, as the amendment has come midway after the selection process had commenced, which is not permissible in law, is the contention. By way of an illustration of the above point, it has been averred that the second 1st petitioner, who has secured the rank in the entrance test is now pushed down to 18th rank and a few other candidates, who had secured lower ranking in the marks list of the entrance test on account of the weightage of 225 marks being added, are now at 4th and 5th rank. Contending that the impugned amendment has a catastrophic effect on inter se merit of the candidates, petitioners have sought for rejection of the application and have pleaded for publication of the final selection list, in terms of the unamended Rule 5A. 8. Certain in service candidates filed applications for impleadment, by contending that they are senior to the petitioners inasmuch as they have served for more number of years in rural areas and that in order to give preference to the senior in service candidates, Rule 5A has been amended. That there is no illegality or arbitrariness in the said amendment and therefore, there is no merit in the writ petitions, is their contention. That there is no illegality or arbitrariness in the said amendment and therefore, there is no merit in the writ petitions, is their contention. They have sought to justify the impugned amendment to Rule 5A, by contending that by the amended rule, the manner of awarding weightage has been altered, so as to benefit the senior in service candidates, which is perfectly justifiable and that there is no merit in these writ petitions. The applications filed by the proposed respondents were allowed and they have been arrayed as private respondents in these writ petitions. 9. On account of the urgency pleaded on behalf of the State, this Court heard learned counsel for the parties on the merits of the writ petitions rather then considering only the application for vacating the interim order. In this regard, the recent order of the Apex Court in the case of Priya Gupta vs. State of Chattisgarh, 2012 (7) SCC 433 may be noted with regard to compliance of admissions in terms of the prescribed time schedule. In the said decision, the Hon’ble Supreme Court has observed that the High Court should ensure strict adherence to the prescribed time schedule, process of selection and to the rule on merit. Further, that the High Court may, except in exceptional cases, should consider it appropriate to decline interim orders and hear the main petitions finally subject to the convenience of the Court. SUBMISSIONS: 10. I have heard learned counsel for petitioners, learned Advocate General for first and third respondent – State, learned counsel for second respondent – Medical University and learned counsel for private respondents and perused the material on record. 11. It was contended on behalf of the petitioners that the State Government could not have altered the method of selection of in service candidates for admission to Post Graduate Courses by changing the manner in which weightage was to be awarded to them after the commencement of the selection process. It was succinctly submitted that “the rules of the game cannot be changed after the commencement of the game.” Elaborating on the said submission, petitioners counsel contended that the commencement of the selection process for admission to Post Graduate Medical Degree and Diploma Courses for the academic year 2015-16 commenced by issuance of the advertisement on 08/08/2014. It was succinctly submitted that “the rules of the game cannot be changed after the commencement of the game.” Elaborating on the said submission, petitioners counsel contended that the commencement of the selection process for admission to Post Graduate Medical Degree and Diploma Courses for the academic year 2015-16 commenced by issuance of the advertisement on 08/08/2014. After issuance of the Brochure, the eligible candidates appeared for the entrance examination between 1st to 6th December 2014 and in fact, marks list of the entrance test was also announced on 15/01/2015. The separate marks list of the in service candidates has been published. The in service candidates became aware of their inter se merit in terms of the entrance test. In fact, as per the existing Rule 5A, the in service candidates could also gauge their merit in the final selection list by applying the weightage of marks as stipulated in Rule 5A, which was incorporated to PGET Rules, 2006, by amendment dated 18/01/2011. 12. Thus, on the publication of the marks list of the entrance test, the in service candidates were clear about their ranking in the final merit list on the basis of which, the candidates would be called for counseling in order to choose the subject and college of their choice. But instead of applying existing Rule 5A and adding weightage of marks in terms of that rule, to the marks obtained by the candidates in the entrance examination, the State Government amended Rule 5A, by issuance of the impugned Notification dated 11/03/2015. As a result there is a change in the manner of awarding service weightage and the inter se merit of the candidates is altered. It was contended that weightage to be added by way of marks to the marks obtained by the in service candidates in the entrance examination was changed to award of weightage on the basis of percentage of total marks of the test which is 1500. Instead of awarding 30 marks as the maximum marks, it is now 225 marks as the maximum marks. As a result, the sanctity of marks list of the entrance exam has been diluted and the final merit list does not reflect the true merit of the candidates, was the submission. Instead of awarding 30 marks as the maximum marks, it is now 225 marks as the maximum marks. As a result, the sanctity of marks list of the entrance exam has been diluted and the final merit list does not reflect the true merit of the candidates, was the submission. It was contended with reference to several judgments of the Hon’ble Supreme Court that in Post Graduate admissions, merit must have an upper hand and the award of weightage of marks is only incidental by way of an incentive to the in service candidates. That in the instant case by the impugned amendment to Rule 5A, the manner in which the weightage is awarded to the in service candidates, has affected the inter se merit of the in service candidates, as a result, the final merit list would not be a true merit list but only artificial, as the true merit of the candidates is watered down, was the submission. That earlier, 30 marks was added as the maximum marks to the marks obtained by an in service candidate, in the entrance exam, but now, 225 marks is the maximum marks added under the amended rule. It was, hence, contended that the impugned rule be quashed and a direction be issued to the respondent State to prepare the final merit list, in terms of Rule 5A, as it existed prior to the impugned amendment. Petitioners’ counsel has relied on the following decisions: (i) Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 (ii) Tamil Nadu Computer Science B.Ed Graduate Teachers Welfare Society (I) v. Higher Secondary School Computer Teachers Association and others, (2009) 14 SCC 517 13. Per contra, learned Advocate General, appearing for the State, sought to justify the amendment made to Rule 5A on two counts. It was firstly contended that the State was not aware that the total marks to be awarded in the entrance test held in December would be 1500. That in the year 2011-2012, it was 200 and in the year 2014-15, it was 800 but for the current year 2015-16, it has been enhanced to 1500. It was firstly contended that the State was not aware that the total marks to be awarded in the entrance test held in December would be 1500. That in the year 2011-2012, it was 200 and in the year 2014-15, it was 800 but for the current year 2015-16, it has been enhanced to 1500. That, when Rule 5A was inserted in the year 2011, 4 marks i.e., two percent for each completed year of service was added to the marks secured in the entrance examination, up to a maximum of 30 marks i.e., 15% of the maximum marks in the entrance examination. That now, for each completed year of service, instead of 4 marks, two percent of the maximum marks of the entrance examination for each completed year of service beyond five years of service is added to the percentage of marks secured in the entrance examination test and that there is no difference at all between earlier Rule and the impugned Rule 5A and that the amendment has not caused any prejudice to the petitioners, as the impugned amendment would be made applicable to all in service candidates. It was secondly contended that as the State Government was not at all aware that the total marks in the entrance examination would be 1500 in the current year therefore, it did not have an occasion to amend the rule prior to the entrance examination being held. It was only after coming to know that the total marks in the entrance examination was 1500, the State Government thought it fit to amend Rule 5A. It was also contended that when the marks was enhanced from 200 to 800, during the academic year 2014-15, the State Government did not amend Rule 5A, by oversight. 14. Learned Advocate General next contended that the decisions relied upon by petitioners’ counsel are relevant for selection made to posts and in matters of recruitment. The said decisions would not apply to a selection process for admission to a course. On the other hand, he relied upon University Grants Commission and another v. Neha Anil Bobde (Gadekar), (2013) 10 SCC 519 and Sudhir N. & Others v. State of Kerala & Others, 2015 SCC 22 in support of his submissions. 15. The said decisions would not apply to a selection process for admission to a course. On the other hand, he relied upon University Grants Commission and another v. Neha Anil Bobde (Gadekar), (2013) 10 SCC 519 and Sudhir N. & Others v. State of Kerala & Others, 2015 SCC 22 in support of his submissions. 15. It was therefore, contended that there is no merit in these writ petitions and that the stay granted by this Court may be vacated and writ petitions be dismissed. 16. Learned counsel for respondent – University, did not take a legal stance on the impugned amendment. 17. Learned counsel for private respondents supported the State and contended that the object of the impugned amendment was to bring it on par with the total marks allocated in the entrance examination, which was 1500. That the amendment to Rule 5A is in consonance with the total marks that has been prescribed in the entrance test. That by the impugned amendment to Rule 5A, the inte se merit of the candidates in the final merit list would not be altered at all. That by the amendment made to Rule 5A of the PGET 2006 Rules, more experienced doctors and those who are senior would be benefited. That the petitioners have filed these writ petitions on imaginary grounds based on conjectures and surmises and that there is no merit in these writ petitions. 18. By way of reply, learned counsel for petitioners while reiterating his submissions, contended that inter se merit of the in service candidates in terms of Circular dated 18/02/2015 was after the addition of weightage of marks on the basis of the extant Rule 5A, could not have been altered on the basis of the impugned amendment, as has been done by the subsequent Circular issued on 16/03/2015. Drawing a comparison of those two circulars, he contended that on account of the impugned amendment made to Rule 5A, inter se merit of the candidates has been destroyed and as a result, not only the petitioners but several other meritorious candidates have lost their merit and instead, less meritorious candidates have gained merit by an artificial means and not on the basis of their true merit and therefore, he contended that the impugned amendment to Rule 5A be quashed and relief be granted to the petitioners. 19. 19. I have considered the aforesaid submissions in light of the relevant provisions of law and the judgments of the Hon’ble Supreme Court. POINT FOR CONSIDERATION: 20. Keeping in mind the facts of the present case, the relevant provisions of law and judicial precedent, the following point would arise for my consideration: Whether amendment made to Rule 5A of PGET Rules 2006, by Notification dated 11/03/2015, is illegal and arbitrary, as it affects inter se merit of in service candidates, as compared to Rule 5A, as it stood prior to the impugned amendment? LEGAL FRAMEWORK: 21. The Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 (hereinafter referred to as ‘Capitation Fee Act’) has been enacted to curb the evil practice of collection of capitation fee for admission to educational institutions in the State of Karnataka and to regulate certain matters relating there to. The said Act received the assent of the President on the 20.07.1984. Section 4 of the said Act deals with regulation of admission to educational institutions, on the basis of general or special orders, as may be made by the Government in this behalf and any other law for the time being in force, with regard to the minimum qualification for admission to any course of study in an educational institution, which may be specified by the university concerned where the educational institution is maintained by or affiliated to such university or by the Government in the case of other courses of study in any other educational institution. It also regulates the maximum number of students that could be admitted to the course of study in an educational institution, which may be fixed by the Government from time to time. Section 5 regulates tuition fee or any other fee or deposit or other amount that may be received or collected by any educational institution or class of such institutions in respect of any or all class or classes of students. Section 12 states that the provisions of the Capitation Fee Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 14 enables the State Government to make rules for the purpose of carrying out the purposes of the Act. 22. PGET Rules 2006 have been enacted pursuant to Section 14 of the Capitation Fee Act. Section 14 enables the State Government to make rules for the purpose of carrying out the purposes of the Act. 22. PGET Rules 2006 have been enacted pursuant to Section 14 of the Capitation Fee Act. As already noted, PGET Rules, 2006 have been enforced since 08/12/2006 and amended by Amendment Rules 2013 w.e.f. 23/11/2013. 23. Under those rules, “In service candidates” is defined in clause (g) of Rule 2 and it reads as under: 2. Definitions: (g) “In service candidates” means persons belonging to the Health & Family Welfare Services, Employees State Insurance (Medical) Services, Mahanagara Palike Services, Boards and Corporations Services and Institutions which are granted autonomous status including the persons deputed from such services to any other foreign services; “Merit” is defined in Clause (h) as under: (h) “Merit” means the order of merit determined on the basis of marks secured in the Entrance Test. Rule 3 speaks of “Entrance Test”, which reads as under: “3. Entrance Test: (1) For the purpose of selection of candidates and determination of merit, an Entrance Test shall be conducted by the Committee through the Karnataka Examination Authority for the candidates seeking admission to the Professional Medical and Dental courses including the seats reserved for in service candidates. Provided that in case State Government decides to adopt the marks secured in the All India Post Graduate Medical Entrance Examination (AIPGMEE) to determine the merit list, then the Entrance Test means the test conducted by the National Board of Examination under the name of All India Post Graduate Medical Entrance Examination (AIPGMEE). (2) In service candidate, who has completed five years of regular service including successfully completion of probationary period as on the last date of receipt of application for the Entrance Test, may apply through, the proper channel only through the concerned Head of the Department i.e. Director Medical Education, Director, Health and Family Welfare Services or Director, ESI or Heads of Autonomous Institutions or Heads of Boards and Corporations, as the case may be. Rule 10 deals with Procedure for selection of in service candidates for admission to Post graduate Medical and Dental Courses, which reads as under: “10. Rule 10 deals with Procedure for selection of in service candidates for admission to Post graduate Medical and Dental Courses, which reads as under: “10. Procedure for selection of in service candidates for admission to Post graduate Medical and dental courses: The Procedure for selection of in service candidates for admission to Post graduate Degree and Diploma in Medical and Dental courses is as follows: (1) No in service candidate shall be eligible for admission under these rules, (a) (Unless an)In service candidate who has completed five years of regular employment in service including successful completion of probationary period as on last date of receipt of applications for the Entrance Test is eligible to apply for the Common Entrance test.” (2) No in service candidate shall be eligible for admission to Post graduate degree and Diploma courses in any subject other than the Speciality in which he is working. (3) An In service candidate who is already holding a Post Graduate degree in any speciality shall not be eligible for admission to any other Post Graduate degree or Diploma. (4) An in service candidate who is already holding a Post graduate Diploma in any speciality shall be eligible for Post graduate degree courses in the same speciality and shall not be eligible for any other Post graduate Degree or Diploma courses. (5) An in service candidate who is studying in any Post graduate degree or Diploma course shall not be eligible for admission under these rules. (6) No candidate who is above forty-eight years of age as on the last date fixed for receipt of application shall be eligible for admission. Rule 12 deals with “Reservation of seats for in service candidates”, which reads as under: “12. Reservation of Seats for in service candidates: The seats within the in service quota shall be reserved as per the reservation policy of the State Government issued from time to time.” By Notification dated 18/01/2011, certain amendments were made and Rule 5A was inserted to PGET Rules, 2006 by Amendment Rules, 2011 and the same reads as under: “5A. Reservation of Seats for in service candidates: The seats within the in service quota shall be reserved as per the reservation policy of the State Government issued from time to time.” By Notification dated 18/01/2011, certain amendments were made and Rule 5A was inserted to PGET Rules, 2006 by Amendment Rules, 2011 and the same reads as under: “5A. Merit list of in service candidates:(1) Notwithstanding anything contained in these rules, while preparing the merit list of candidates in respect of in service candidates working under the Directorate of Health and Family Welfare Services, who has secured minimum qualifying marks, a weightage of four marks for each completed year of service beyond five years of service shall be added to the marks secured in the entrance test subject to a minimum of thirty marks; Provided that for each completed year of rural service beyond five years of service, a weightage of eight marks shall be added to the marks secured in the entrance test in lieu of four marks subject to a maximum of thirty marks. No weightage shall be added for the service rendered below five years. Explanation: For the purpose of this rule, “rural service” means the service rendered in areas other than the areas falling within the limits of municipal corporation, city municipal council, town municipality, town panchayat established under the Karnataka Municipal Corporations Act, 1976 or the Karnataka Municipalities Act, 1964 as the case may be and upto such distance from these limits as may be notified by the State Government as urban area and includes the service rendered in rural areas under the contract period and rural service rendered under the rural weightage selection. (2) The in service candidates working under the Directorate of Health and Family Welfare Services shall not be eligible for Post graduation or Diploma courses in the disciplines which are not required in the hospitals or institutions coming under the purview of the Director of Health and Family Welfare Services.” The amended Rule 5A by notification dated 11/3/2015 under Amendment Rules, 2015 reads as under: 2. AMENDMENT OF RULE 5A: In the Karnataka conduct of Entrance Test for Selection and Admission to Post-Graduate Medical and Dental Degree and Diploma Courses, Rules, 2006, in Rule 5A, in Sub-Rule (1). AMENDMENT OF RULE 5A: In the Karnataka conduct of Entrance Test for Selection and Admission to Post-Graduate Medical and Dental Degree and Diploma Courses, Rules, 2006, in Rule 5A, in Sub-Rule (1). (i) For the words “four marks for each completed year of service beyond five years of service shall be added to the marks secured in the entrance test subject to a maximum of thirty marks” the words “two percent of the maximum marks of the entrance Examination for each completed year of service beyond five years of service shall be added to the percentage of marks secured in the Entrance Examination Test subject to a maximum of fifteen percent of the maximum marks of the Entrance Examination shall substituted. (ii) In the proviso, for the words “eight marks shall be added to the marks secured in the entrance test in lieu of four marks subject to a maximum of thirty marks, the words “four percent of maximum marks of the Entrance Examination shall be added to the percentage of marks secured in the Entrance Examination in lieu of two percent of maximum Entrance Examination marks, subject to a maximum of fifteen percent of the maximum marks” shall be substituted. 24. Regulation 9 of the Post Graduate Medical Education Regulations, 2000 has been amended with effect from 21/12/2010, applicable from academic year commencing from 201314 vide Notification dated 15/2/2012, by the Central Government. The relevant portion reads as under: “9. Procedure for selection of candidate for Postgraduate courses shall be as follows: I. There shall be a single eligibility cum entrance examination namely ‘National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses’ in each academic year. The superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with National Board of Examinations under overall supervision of the Ministry of Health & Family Welfare, Government of India.’ II. xxx III. xxx IV. The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. The superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with National Board of Examinations under overall supervision of the Ministry of Health & Family Welfare, Government of India.’ II. xxx III. xxx IV. The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Postgraduate courses from the said merit lists only: Provided that in determining the merit of candidates who are in service of Government/ public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test, the remote and difficult areas shall be as defined by State Government/Competent authority from time to time.” JUDICIAL PRECEDENT: 25. The relevant judgments of the Hon’ble Supreme Court could be noted at this stage. (a) In K. Doraiswamy & another v. State of Tamil Nadu & others, AIR 2001 SC 717 , the Hon’ble Supreme Court while considering the question of allocation of seats between in service candidates and open category candidates with regard to Post Graduate Medical Education, has observed as follows with regard to in service candidates: “20. 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, may be, 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. 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 other 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”. (b) In Dr. Dinesh Kumar & others (II) v. Motilal Nehru Medical College, Allahabad & others, (1986) 3 SCC 727 , the Hon’ble Supreme Court doubted the proposition of giving weightage to candidates, who had rendered rural service on the premise that they may not return to rural service after post-graduation. Those observations were considered by a three Judge Bench of the Hon’ble Supreme Court in Dr. Snehelata Patnaik & others v. State of Orissa and others, (1992) 2 SCC 26 and it was observed that weightage of maximum of 5 per cent of marks in favour of in service candidates, who had done rural service for five years or more could be given. (c) In Gopal Thirthani, the Hon’ble Supreme Court ruled on the significance of the eligibility test and held as follows: “25. 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 postgraduate 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 counseling 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. 26. 26. The Medical Council of India, for the present insists, through its Regulations, on a common Entrance Test being conducted whereat the minimum qualifying marks would be 50%.” As to whether weightage could be given to doctors for their having rendered specified number of years of service in rural or tribal areas, it has been observed that in service doctors had been told in advance and knowing that by rendering service in rural/tribal areas, they can capture better prospects of earning higher professional qualifications and consequently eligibility for promotion, acts as a motivating factor and provides incentive to young in service doctors to opt for service in rural/tribal areas. Therefore, assigning weightage to rural service rendered as Assistant Surgeons and carving out a classification in favour of women candidates conferring them with eligibility for seeking admission in postgraduate courses by rendering three years’ consecutive service in rural areas satisfy the twin tests of Article 14 of the Constitution. Thus, the Hon’ble Supreme Court held that it is permissible to assign a reasonable weightage to services rendered in rural/tribal areas by the 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. DISPUTE REGARDING CURRENT ACADEMIC YEAR 20152016: 26. As far as the academic year 201516 is concerned, as already noted, the advertisement for the entrance test was notified on 08/08/2014. The entrance examination was held between 1st to the December 2014 and on 15/01/2015, results were declared. The Provisional Merit List of PGET Medical in service Candidates of 2015, is annexed to the statement of objections filed by the petitioners, which contains the marks obtained in the entrance test. In fact, the entrance test was held in terms of Regulation – 9 of the Post Graduate Medical Education Regulations, 2000, made under Section 20 of the Indian Medical Council Act, 1956, by the Central Government. Under that regulation, a single eligibility cum entrance examination namely, “National Eligibility-cum-Entrance Test” for Post Graduation Medical Courses (NEET) in each academic year is held. The superintendence, direction and control of the said test vests with National Board of Examination, under over all supervision of the Ministry of Health and Family Welfare, Government of India. This is from academic year 2012-13 onwards. The superintendence, direction and control of the said test vests with National Board of Examination, under over all supervision of the Ministry of Health and Family Welfare, Government of India. This is from academic year 2012-13 onwards. Prior to that, second respondent – University used to conduct the examinations insofar as Karnataka State was concerned. After declaration of results on 15/01/2015, the State did not prepare a final merit list by adding weightage of marks in terms of the prevalent Rule 5A of PGET Rules, extracted above. Instead, amendment to Rule 5A was made by issuance of Notification dated 11/03/2015. 27. In fact, prior to amendment of Rule 5A, Circular dated 08/02/2015 was issued along with merit list of in service candidates inclusive of service weightage as per earlier Rule 5A. Subsequent to the amendment of Rule 5A, one more Circular dated 16/03/2015 has been issued, which is also a provisional merit list of marks of in service candidates along with service weightage marks as per the amended Rule 5A. It is this Circular dated 16/03/2015 – Annexure “F”, as well as the amended Rule 5A, which have been assailed by the petitioners. Petitioners have also furnished the Provisional Merit List of In service Candidates, as per the weightage of 2015 amendment made to Rule 5A. 28. It is the contention of the petitioners that the merit list finalized pursuant to the amended Rule 5A is illegal, arbitrary and in violation of Article 14 of the Constitution, whereas, the State has supported it. 29. In order to examine the aforesaid contention, at this stage, the Rule as it existed prior to the amendment and the amended rule could be compared and analysed. Rule 5A was inserted to PGET Rules 2006 by notification dated 18.1.2011. That Rule stated that notwithstanding anything contained in the Rules i.e. PGET Rules 2006, while preparing the merit list of the candidates in respect of in service candidates, who has secured minimum qualifying marks, weightage of four marks for each completed year of service beyond five years of service was to be added to the marks secured in the entrance test subject to a maximum of thirty marks. According to the proviso, for each completed year of rural service beyond five years, service weightage of eight marks was to be added to the marks secured in the entrance test in lieu of four marks subject to a maximum of thirty marks. No weightage was to be added for the services rendered below five years. The proviso defined ‘rural service’. 30. In the amended Rule 5A, as per notification dated 11.3.2015 for the words, “four marks for each completed year of service beyond five years of service shall be added to the marks secured in the entrance test subject to a maximum of thirty marks”, the words, “ two percent of the maximum marks of the Entrance Examination for each completed year of service beyond five years of service shall be added to the percentage of the marks secured in the Entrance Examination test subject to a maximum of fifteen percent of the maximum marks of the Entrance Examination are substituted. In the proviso again for the words, “eight marks shall be added to the marks secured in the entrance test in lieu of the four marks subject to a maximum of thirty marks”, the words, “four percent of the maximum marks of the entrance examination shall be added to the percentage of marks secured in the Entrance Examination subject to a maximum of fifteen percent of the maximum marks” are substituted. Thus under the 2011 Rule, the weightage was in the form of adding marks to the marks secured in the entrance test and the maximum marks by way of weightage was thirty marks. But in the amended Rule, it is not marks, but percentage. It is two percent of the maximum marks or total marks which is equivalent to 30 marks (as total marks is 1500 for current year) weightage is up to a maximum of fifteen percent of the marks of the Entrance Examination, which is 225 marks. 31. Thus, under the previous Rule 5A, marks were added i.e., either 4 marks or 8 marks, as the case may be, to the marks secured in the entrance examination, in respect of an in service candidate. But under the amended rule, it is two percent of the total marks of the entrance examination, which is reckoned. 31. Thus, under the previous Rule 5A, marks were added i.e., either 4 marks or 8 marks, as the case may be, to the marks secured in the entrance examination, in respect of an in service candidate. But under the amended rule, it is two percent of the total marks of the entrance examination, which is reckoned. Therefore, under the previous rule, the weightage of marks to be added to the marks secured by an in service candidate did not have any reference or nexus to the total or maximum marks stipulated in the entrance examination. But under the amended rule, weightage is based on the total marks stipulated in the entrance test. Thirdly, under the previous rule, minimum marks that could be given was four and the maximum marks of thirty by way of weightage. But under the amended rule, the minimum marks that could be awarded is 30 and the maximum marks is 225. 32. The difference in the rules could be brought out by way of the following illustration: If an in service candidate has put in ten years of service, then under the previous Rule, the weightage of the marks would be as under: Excluding the first five years, from the sixth year up to the tenth year, for every year, four marks would have to be reckoned which would mean 4 marks x 5 years = 20 marks, the maximum marks to be awarded being 30. Suppose a candidate had secured 1000 marks out of 1500 marks, twenty marks would be added to his score and it would become 1020 marks. But under the amended rule, the position is as under: From the sixth year up to the tenth year for every year, the said candidate would be given two percent of the maximum marks or total marks of the Entrance Examination. The maximum marks is 1500. Two percent of 1500 is “30” Therefore for every completed year of service, it would be 30 marks. 30 marks x 5 years would be 150. 150 marks would be added to the percentage of marks secured in the entrance test. This percentage of marks obtained by the candidate would perforce have to be converted to marks as weightage marks cannot be added to percentage of marks. Thus 150 marks would have to be added to marks only. 30 marks x 5 years would be 150. 150 marks would be added to the percentage of marks secured in the entrance test. This percentage of marks obtained by the candidate would perforce have to be converted to marks as weightage marks cannot be added to percentage of marks. Thus 150 marks would have to be added to marks only. If the candidate has secured 1000 out of 1500, 150 marks would be added to 1000 marks secured in the Entrance Examination, in which case, it would be 1000 + 150 = 1150. Thus as per the aforesaid illustration, what was only twenty marks awarded by way of weightage for in service candidate under the previous Rule would result in addition of 150 marks. 33. This can be better illustrated by comparing the effect of the Rule on the ranks of two candidates when the impugned Rule is applied which was pointed out by learned counsel for petitioners during the course of his submissions. Petitioners’ counsel has filed two provisional lists of in service candidates of 2015. The first provisional list contains the marks of in service candidates prepared on the basis of merit in entrance examination. In that list, Dr. Syeda Kouser Anjum (second petitioner herein) has secured 1156.9688 marks and she is rank No.1 in the entrance examination and one Dr.H.N. Veena has secured 977.1927 and she is placed at rank No.33. Now, by application of amended Rule 5A, no weightage of marks has been given to Dr.Syeda Kouser Anjum, as she has less than 5 years of service and rightly so. As far as Dr.H.N. Veena is concerned, weigtage of 225 marks, which is the maximum marks have been awarded by way of service weightage. As a result, Dr.Syeda Kousar Anjum’s final tally is 1156.969, while that of Dr.H.N.Veena is 1232.193. Addition of 225 marks by way of weightage under the amended Rule 5A has sky rocketed the position of Dr.H.N. Veena from the rank of 33 to that of rank 5, which is higher than what Dr.Syeda Kousar Anjum’s tally is and the latter’s rank is lowered from rank No.1 to rank No.15. Addition of 225 marks by way of weightage under the amended Rule 5A has sky rocketed the position of Dr.H.N. Veena from the rank of 33 to that of rank 5, which is higher than what Dr.Syeda Kousar Anjum’s tally is and the latter’s rank is lowered from rank No.1 to rank No.15. On the other hand, under the previous Rule 5A, only 30 marks would have been added to the total marks obtained by Dr.H.N.Veena, in the entrance examination, which would have made her total marks as 997.1927+30 = 1027.193, which would have been lesser than Dr.Syeda Kousar Anjum’s tally of 1156.969 marks. 34. Thus, what becomes apparent is the fact that merit of the candidates in the entrance examination in terms of the marks secured by them in the said examination has been totally destroyed on account of addition of 225 marks (i.e. maximum marks) to in service candidates under the impugned Rule. Under the earlier Rule, the maximum marks that could be given by way of weightage was only thirty marks, but under the impugned Rule, it is 225 marks. Therefore addition of fifteen percent of the total marks i.e. 225 marks as the maximum marks, alters the merit that the candidates had secured in the entrance test. Moreover if any in service candidate could secure 1300 out of 1500 marks and weightage of 225 marks is to be added then the total marks secured would be 1525/1500 which is illogical. Such a position would not have occurred under the previous Rule, but by the impugned rule, the position and merit of the candidates have been totally altered. 35. Learned Advocate General has argued that the marks secured in the Entrance Examination is not the final merit list and that it is only on the addition of service weightage that the merit of the candidates would be known. It may be so, but the question here is with regard to the manner in which the final merit is being determined. 36. In this context, the meaning and object of giving weightage to in service candidate must be understood. Weightage is given to those candidates having regard to the fact that they are in service and they would have been disconnected from academics and therefore for every year of service beyond five years certain weightage in the form of marks was given under the earlier Rule. Weightage is given to those candidates having regard to the fact that they are in service and they would have been disconnected from academics and therefore for every year of service beyond five years certain weightage in the form of marks was given under the earlier Rule. The object and purpose of giving weightge is only to compensate the in service candidates as they would have been disconnected from academics. The real object in fact is to give an incentive to those persons who have rendered service in rural areas or in remote areas of the State. However, the State Government has awarded weightage for all in service candidates and a higher weightage for those candidates who have rendered rural service. Be that as it may. 37. As has already been noted, under the previous Rule 5A, what was awarded by way of weightage was only in the form of marks, but now by way of the amended Rule 5A what is awarded is percentage of total marks in the entrance examination. By the amended Rule, the earlier Rule has been substituted. Substitution of a provision results in the repeal of the earlier provision and its replacement by new provision. Substitution thus combines repeal and fresh enactment. When a statutory provision or a Rule is repealed and substituted by another Rule, the repeal takes effect from the date of repeal and the law repealed remains in operation for the period before its repeal. 38. Having regard to the aforesaid discussion, I am of the considered view that the impugned Rule suffers from the vice of arbitrariness and is in violation of Article 14 of the Constitution for the following reasons: (i) Firstly, the increase in weightage of marks in the midst of the selection process cannot depend on the total marks which was awarded by NEEB. NEEB is the authority concerned with the conduct of entrance examination on an All India basis. Earlier, insofar as State of Karnataka is concerned, it used to be conducted by the respondent – University. NEEB may vary the total marks from year to year. This year, the total marks is 1500. Earlier, it was 800, next year, it may be a different figure altogether. Earlier, insofar as State of Karnataka is concerned, it used to be conducted by the respondent – University. NEEB may vary the total marks from year to year. This year, the total marks is 1500. Earlier, it was 800, next year, it may be a different figure altogether. But on the basis of total marks awarded by NEEB in the entrance examination, the State Government cannot vary the weightage of marks to be given to in service candidates in the midst of the selection process. Therefore, the reason given that on account of the increase in the total marks to 1500 by NEEB for the current year, a need arose to amend Rule 5A of PGET Rules, 2006 is not acceptable. If in the next academic year NEEB alters the total marks that could be awarded in the entrance test, then again weightage of marks cannot be changed on that basis. Weightage of marks to be awarded to an in service candidate must be known with certainty to the candidates at the time of the commencement of the selection process and cannot have any nexus to the total marks to be awarded by NEEB in the entrance examination. (ii) Secondly, amendment to Rule 5A has been made in the midst of the selection process and has taken the candidates by surprise. Of course, the State sought to justify the amendment to Rule 5A at this juncture on the basis of the increase in total marks awarded by NEEB in the entrance examination. As already noted, the State Government could not have altered the weightage of marks to be awarded to in service candidates on the basis of the total marks awarded in the entrance examination by NEEB. Therefore, amendment made to Rule 5A midstream during the selection process is also improper. In this context, reference could be made on the following decisions of the Hon’ble Supreme Court which were cited at the Bar: (a) In Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11, the question for consideration was whether introduction of requirement of minimum marks for interview, after the entire selection process was completed, would amount to changing the rules of the game after the game was played. The Hon’ble Supreme Court noted that no doubt, rules prescribing minimum marks for both written examination and vivavoce, could be made but if minimum marks were not prescribed for vivavoce before commencement of selection process, the authority concerned, could not either during or after the selection process add an additional required qualification that the candidate should also secure minimum marks in the interview. The Hon’ble Supreme Court was of the opinion that the prescription of minimum marks by the respondent therein at vivavoce test was illegal and thus, allowed the petitions. (b) In Tamil Nadu Computer Science B.Ed Graduate Teachers Welfare Society (I) v. Higher Secondary School Computer Teachers Association and others, (2009) 14 SCC 517 , the Hon’ble Supreme Court held that prior to holding of the test, guidelines were formulated through a policy decision, laying down the criteria that the minimum qualifying marks in the said list would be atleast 50%. According to the Hon’ble Court, the said guideline for recruitment laid down in the policy was sacrosanct and was required to be followed for all practical purposes. Reduction of the minimum qualifying marks by subsequent decision from 50% to 35% after holding the examination and at the time when the result of the examination was to be announced and thereby, changing the criteria on the verge of and towards the end of the game was held to be arbitrary and unjustified. Consequently, candidates who had secured more than 50% qualifying marks in the special recruitment test were to be treated as qualified and recruited as per instructions and those candidates who had secured less than 50% qualifying marks were to be declared as unsuccessful. (c) In University Grants Commission and another v. Neha Anil Bobde [Gadekar], (2013) 10 SCC 519 , the question considered was as to whether the University Grants Commission (UGC) had power to fix the final qualifying criteria, for those who had obtained the minimum marks for all the papers, before the final declaration of the results of the National Eligibility Test (NET) for the year 2012. The Hon’ble Supreme Court held that steps taken by UGC were strictly in accordance with Clause 7 of the notification issued for the NET Examination 2012. Prescribing the qualifying criteria as per Clause 7, did not amount to a change in the rule of the game as it was already premeditated in the notification. The Hon’ble Supreme Court held that steps taken by UGC were strictly in accordance with Clause 7 of the notification issued for the NET Examination 2012. Prescribing the qualifying criteria as per Clause 7, did not amount to a change in the rule of the game as it was already premeditated in the notification. It was also held that the candidates were not misled in any manner and that UGC had only implemented the opinion of the experts by laying down the qualifying criteria, which was not arbitrary, illegal, discriminatory or violative of Article 14 of the Constitution. This judgment cited by learned Advocate General was sought to be distinguished by petitioners’ counsel by drawing my attention to Para 7 of the notification dealing with the scheme and date of the NET test. It reads as follows: “Only such candidates who obtain the minimum required marks in each paper, separately, as mentioned above, will be considered for final preparation of result. However, the final qualifying criteria for Junior Research Fellowship (JRF) and eligibility for Lectureship shall be decided by UGC before declaration of result.” According to petitioners’ counsel, candidates therein were aware of the fact that the final qualifying criteria was to be decided by the UGC before declaration of result and UGC had constituted a Moderation Committee consisting of experts for determining qualifying criteria for eligibility for Lectureship and JRF. UGC accepted the recommendation of the Expert Committee. Therefore, the Hon’ble Supreme Court in that case had held that there was no arbitrariness in not prescribing the eligibility criteria prior to the declaration of result. He contended that in the instant case, the aforesaid facts do not prevail and therefore, that judgment does not apply to the present case. The aforesaid submission is accepted and it is held that on facts, the aforesaid judgment does not apply to the present case. Certain other judgments pertaining to recruitment to posts could be considered at this stage. (d) In Rekha Chaturvedi v. University of Rajasthan & others, 1993 (1) LLJ 818 , the facts were that the University of Rajasthan had invited application by its advertisement dated 12.10.1983 for appointment of 10 posts of Assistant Professors (lecturers). The last date for submitting application was 14.11.1983. (d) In Rekha Chaturvedi v. University of Rajasthan & others, 1993 (1) LLJ 818 , the facts were that the University of Rajasthan had invited application by its advertisement dated 12.10.1983 for appointment of 10 posts of Assistant Professors (lecturers). The last date for submitting application was 14.11.1983. According to the educational qualifications notified, as on the last date for submitting the applications, a candidate applying for the said post should have had (a) A Doctorate degree (in the relevant subject) or research work of an equally high standard (in the relevant subject), (b) Good academic record with at least a second class Master’s degree (in the relevant subject). However, if the selection Committee was of the view that if research of a candidate, evident either from his thesis or from his published work, was of a very high standard, the Selection Committee could relax the qualification of the candidate that he should have had at least a doctorate degree or research work of an equally high standard with good academic record with a Second Class Master’s decree. Other relaxations were also provided. Thus, doctorate degree was not a must and lack of doctorate degree could be made up by either of the qualifications laid down above. None of the candidates except respondent No.10 therein, who had applied and appeared for the interview possessed doctorate degree by the last date of submitting the applications for the posts. It was argued by the University therein that at the time of selection, respondents 5 and 11 therein had obtained their doctorate degrees and they could be said to have fulfilled the requisite qualification. It was also argued that since respondents 6 and 7 therein were registered for P.HD., by the time of the selection they had put in research work connected with their thesis and in February 1985 i.e. the date of selection, they had about three years experience in research work. Other such contentions were raised justifying relaxation of the academic qualifications by the Scrutiny Committee. The contention was that the requisite qualifications of the candidates could be examined with reference to the last date of selection and not with reference to the last date of making the application and that any qualification acquired subsequent to the last date of selection up to the date of selection could be considered for appointment, was the contention. The contention was that the requisite qualifications of the candidates could be examined with reference to the last date of selection and not with reference to the last date of making the application and that any qualification acquired subsequent to the last date of selection up to the date of selection could be considered for appointment, was the contention. That contention was rejected on the ground that uncertainty of the date with regard to acquisition of a minimum qualifications would lead to contrary consequences namely, even if candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future time could apply for the post thus swelling the number of applications. The Hon’ble Court opined that such uncertainty would give scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others arbitrarily. Hence in the absence of a fixed date indicated in the advertisement of notification calling applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications would be the last date for making the applications was the view of the Hon’ble Supreme Court. (e) The aforesaid decision was based on another decision in A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra & Others, 1990 (2) SCC 669 . In that decision, it was held that the word ‘selection’ must be understood not only the final act of selecting candidates with preparation of the list for appointment, but the selection process consists of various steps such as inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conduct of examination, calling for interview, or viva voce and preparation of list of selected candidates for appointment. Therefore, there are different steps in the process of selection. The Hon’ble Supreme Court on the point of controversy, held that the minimum or maximum age for suitability of a candidate for appointment could not be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection was delayed and more often it happens for various reasons, the candidates who were eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. If the final stage of selection was delayed and more often it happens for various reasons, the candidates who were eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word ‘selection’ only as the factum of preparation of the select list. The aforesaid judgments though have laid down the law in the context of recruitment to posts could be relied upon, even in the instant case, where selection is being made for the purpose of admissions to Post Graduate Medical Courses, which is also on the basis of merit. (f) Learned Advocate General however submitted that in the case of recruitment once a selection process begins, recruiting agency cannot either add additional qualifications to be acquired by the candidates or relax the qualifications prescribed if they have not been done so prior to the last date for making applications. However, in academic matters namely, admissions to colleges, selection criteria could be altered. This submission cannot be accepted, having regard to the dictum of the Hon’ble Supreme Court that the selection process commences from the date the advertisement is issued and that the last date mentioned in the advertisement or notifications calling for applications from eligible candidates is the date to be reckoned for the purpose of having the qualifications. No doubt, when once the applications are accepted, the selection process continues by having a method of written test and viva voce or either of them and ultimately the selection would depend on the merit of the candidates in those tests. Similarly, in the instant case, when the merit of the candidate is to be decided on the entrance examination and also on the basis of the weightage to be given to the in service candidate based on Rule 5A of PGET Rules 2006, that Rule which was known to the candidate as on the date of making application and which was to be applied for the academic year 2015. 16. The Rule could not have been altered midway. Therefore, the aforesaid judgments though pertaining to the recruitment process are squarely applicable, even in the case of admission to professional colleges. 16. The Rule could not have been altered midway. Therefore, the aforesaid judgments though pertaining to the recruitment process are squarely applicable, even in the case of admission to professional colleges. The aforesaid judgments though on the point of educational qualifications are applicable by analogy to a condition regarding selection, such as weightage in the present case. In Dolly Chhanda v. Chairman, JEE, (2005) 9 SCC 779 , the Hon’ble Supreme Court observed that the general Rule is that while applying for any course of study or a post, a person must possess the eligible qualification on the last date fixed for such purpose either in the admission brochure or in the application form as the case may be. Unless there is an express provision contrary, there can be no relaxation in this regard i.e. in the matter of holding the requisite eligible qualification by the date fixed. This has to be established by producing necessary certificates, degrees and marks sheets. Similarly in order to avail benefit of reservation of weightage, necessary certificates have to be produced. Therefore, all those principles applicable with regard to certainty in educational qualifications and other conditions of selection of eligible candidates in a case of recruitment to a post are squarely applicable to a case of admission to a course of study. Therefore, having regard to the aforesaid dictum, the amendment made to Rule 5A in the midst of the selection process is illegal, arbitrary and in violation of Article 14 of the Constitution of India. (iii) Thirdly, the manner in which weightage has been formulated by the impugned amendment of Rule 5A of the PGET Rules, 2006, by which maximum marks of 225 could be awarded to in service candidates is in substance, giving precedence to seniority over merit, by the backdoor, which is impermissible. The formula worked out in the impugned amended Rule 5A clearly gives precedence to in service candidates, who have greater number of years of service although, they may not have the requisite merit in the entrance examination. Earlier, maximum marks awarded by way of weightage was 30 marks only whether a candidate was in rural service or in non-rural service. On account of adoption of the percentage formula, based on total marks of the entrance examination, the maximum marks that can now be awarded is 225. Earlier, maximum marks awarded by way of weightage was 30 marks only whether a candidate was in rural service or in non-rural service. On account of adoption of the percentage formula, based on total marks of the entrance examination, the maximum marks that can now be awarded is 225. Such marks can only be given to a person who has more number of years of service. Therefore, adding 225 marks instead of only 30 marks as it was in the previous rule clearly tilts the merit of the candidate towards seniority and this formula brings to the fore the principle that an in service candidate who has put in more number of service would be awarded maximum marks of 225 whereas, earlier, the maximum marks that would have been awarded would have been only 30. In fact this aspect has been admitted by the private respondents in their pleadings. In this context, reference could be made to the latest Supreme Court decision in the case of Sudhir N. v. State of Kerala, 2015 SCC online SC 22, referred to by learned Advocate General Section 5(4) of Kerala Medical Officers admission to Postgraduate Courses under Service Quota Act, 2008 was assailed, as it provided that admission to Post Graduate in service quota shall be only on the basis of the seniority. The Hon’ble Supreme Court after referring to Regulation 9 of Medical Council of India Regulations 2000, held that it is a complete code by itself inasmuch as it prescribes the basis for determining the eligibility of the inter se candidates including the method to be adopted for determining inter se merit which remains the only basis of such admissions. While disapproving the approach of the High Court of Kerala, the Hon’ble Supreme Court opined that even in the case of in service candidates, admissions can be granted only on the basis of merit. A meritorious in service candidate cannot be denied admission only because he has an eligible senior above him, though lower in merit. According to the Hon’ble Court, it is now fairly well settled that merit and merit alone can be the basis of admission among candidates belonging to any given category. A meritorious in service candidate cannot be denied admission only because he has an eligible senior above him, though lower in merit. According to the Hon’ble Court, it is now fairly well settled that merit and merit alone can be the basis of admission among candidates belonging to any given category. Weightage for in service candidates is permissible while determining merit of the candidates in terms of the third proviso to Regulation 9, which provides the permissible basis for granting admission to in service candidates and that no weightage to promote seniority can be given as in service candidates belong to one category, are the observations of the Hon’ble Supreme Court. Referring to the said judgment, learned Advocate General pointed out that weightage up to maximum of 30% of the marks obtained can be given and that in the instant case, by the impugned amendment what has been done is to give weightage of only 15% of the total marks. It is reiterated that total marks in the entrance exam cannot be the basis of determining weightage of marks. (iv) Fourthly, on a comparative analysis of the award of weightage, under Rule 5A, as it stood prior to the impugned amendment, with what has now been formulated under the amended Rule would clearly indicate that merit has taken a back seat. The whole object of having a common entrance test is to admit meritorious students based on their performance in the entrance test. The awarding of weightage of marks to in service candidates is only an incentive and supplemental. But the manner in which the weightage of marks is to be awarded under impugned Rule 5A makes it apparent that merit of the candidates in the entrance test would not have an upper hand in the admission to Post Graduate Medical Course, as the marks obtained by the in service candidates in the entrance examination would not really determine inter se merit of the candidates. It would depend upon the addition of marks by way of weightage under impugned Rule 5A. The addition of marks by way of weightage can only have a minimal impact on the ranking of the students in the entrance test. It cannot destroy inter se merit of the candidates in the entrance examination. It would depend upon the addition of marks by way of weightage under impugned Rule 5A. The addition of marks by way of weightage can only have a minimal impact on the ranking of the students in the entrance test. It cannot destroy inter se merit of the candidates in the entrance examination. Addition of a maximum of 30 marks under the previous rule by way of weightage to the marks obtained in the entrance examination by the candidate did not have a great impact on the over all inter se merit of the candidates. But under the impugned Rule 5A, if addition of 225 marks is made to the marks obtained in the entrance examination then, it really destroys inter se merit of the candidates particularly, when the amended Rule 5A was not made known to the in service candidates at the time when they applied for the examination. It thus alters selection process midstream. 39. Merely because, after the declaration of marks of the in service candidates obtained in the entrance examination, no further step has been taken by the State Government to determine the final merit list, would not imply that there has been no prejudice caused to the petitioners or other similarly placed candidates. The in service candidates knew when they applied as to what would be the weightage of marks that would be awarded to the marks obtained by them in the entrance examination. Under the previous Rule 5A, it was only maximum of thirty marks which was a negligible addition by way of weightage. But merely because 1500 is the total marks awarded by NEEB for the current academic year and based on that figure the State Government could not have amended Rule 5A. Though 225 marks is only fifteen percent of 1500 and 30 marks is fifteen percent of 200 marks, nevertheless marks to be awarded under the impugned amended Rule 5A does not bring to the fore the true merit of the candidates. 40. Giving of weightage of marks in a selection process, be it for recruitment to a post or admission to a course, is only by way of an incentive to the candidates. It is always merit which has to prevail in such matters. 40. Giving of weightage of marks in a selection process, be it for recruitment to a post or admission to a course, is only by way of an incentive to the candidates. It is always merit which has to prevail in such matters. As a consequence of weightage of marks being given to the candidates merit cannot be ignored or put on the back burner or be destroyed, otherwise, the whole purpose of having an objective entrance examination to determine inter se merit of the candidates would be lost and arbitrariness would set in, in place of objective determination of the best candidates. The fact that the impugned amendment has been done midstream is all the more arbitrary and hence, in violation of Article 14 of the Constitution. 41. The Hon’ble Supreme Court in several judgments has time and again reminded all authorities and agencies dealing with admission to institutions of higher learning to give precedence to merit and merit alone. Therefore, no action can be taken by the authorities concerned with regard to admission of candidates particularly, to higher education and professional education, which would vitiate merit. Thus, any amendment to a rule giving weightage to candidates such as in service candidates in the instant case, which would destroy inter se merit of the candidates after they have cleared the entrance examination cannot be permitted in law. 42. Fifthly, under Regulation 9 of the Regulations framed under the Medical Council of India Act, in proviso 3 to sub-regulation (2), it has been clearly indicated that in determining merit, weightage of marks be given as an incentive at the rate of 10% of the marks obtained, for each year of service, in remote or difficult areas upto a maximum of 30% of the marks obtained. Hence, weightage is based on marks obtained in the entrance test and not total marks or maximum marks in the entrance test. Thus, the amended Rule 5A is also contrary to such stipulation in Regulation 9. In fact, in the unamended Rule also, weightage of marks was added to the marks secured in the entrance test and it had no relevance to the total marks prescribed in the entrance test. But in the amended rule, weightage of marks is determined on the basis of maximum or total marks in the entrance test, which is incorrect. In fact, in the unamended Rule also, weightage of marks was added to the marks secured in the entrance test and it had no relevance to the total marks prescribed in the entrance test. But in the amended rule, weightage of marks is determined on the basis of maximum or total marks in the entrance test, which is incorrect. Therefore, for this reason also, amended Rule 5A, awarding weightage of marks on the basis of total or maximum marks in the entrance test is contrary to Regulation 9. 43. Therefore, for all the aforesaid reasons, Rule 5A amended by Notification dated 11/03/2015 (Annexure “E”) is held to be ultra vires Article 14 of the Constitution and hence, has to be struck down. BVNJ: W.P. Nos. 1268085/2015 (EDNRES) 10/04/2015 OPERATIVE PORTION OF THE ORDER In the circumstances, the writ petitions are allowed in the following terms: (1) Rule 5A of PGET Rules, 2006 as amended by the Notification dated 11/03/2015 is declared to be ultra vires the Constitution and hence, struck down. (2) The State Government is directed to prepare the Final Merit List of the candidates based on Rule 5A, as it stood prior to the impugned amendment. (3) The State Government is directed to notify fresh dates for counseling of the in service candidates, which would be in accordance with the time schedule submitted to the Hon’ble Supreme Court which has been approved by order dated 24/03/2015. (4) Liberty is reserved to the State to amend Rule 5A, if it deems fit. But it shall be done before commencement of the selection process for admission to Post Graduate Courses and not after the issuance of advertisement, calling for applications of eligible candidates. (5) Any such amendment to Rule 5A shall have no nexus to the total marks to be awarded by NEEB in the entrance examination. (6) Parties to bear their respective costs. Operative portion of this order to be made available to learned Counsel for respective parties for taking necessary action in the matter.