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2016 DIGILAW 128 (TRI)

Jiban Debnath v. State of Tripura

2016-06-15

S.TALAPATRA

body2016
JUDGMENT : S. Talapatra, J. By means of this writ petition, the petitioner, a Medical Officer, borne in Grade-IV of Tripura Health Service has challenged the action of the respondents No.1 & 2, whereby they had refused the petitioner to take part in counseling for admission in the Post Graduate Courses in Agartala Government Medical College, the AGMC in short, for the academic session 20162017. 2. The facts are mostly undisputed. In terms of the Educational Notification dated 28.12.2015, Annexure-P/1 to the writ petition, the petitioner appeared in the PG Common Entrance Test, 20162017 for admission in the PG courses at the AGMC as the sponsored candidate of the Government of Tripura against his Roll No.S137. From the combined merit list, Annexure-P/3 to the writ petition, it would appear that the petitioner secured 192 out of the total marks of 200. However, from the combined merit list, it transpires that the petitioner secured the rank 6. From the Educational Notification dated 28.12.2015 it clearly transpires that out of 7(seven) seats earmarked for ‘sponsored candidates’, total 4(four) seats are to be filled up from UR candidates and 3(three) from the candidates from the ST/SC. The petitioner has asserted his grievance by stating that the respondents for the first time, by the notification dated 01.04.2016, Annexure-P/5 to the writ petition, had declared that ‘those who secured qualifying marks as per MCI norms only, they are eligible to attend in the counseling as per merit list of Tripura Post Graduate Medical Admission Test, (TPGMAT)2016 which was published on 14.02.2016.’ 3. Even though the petitioner was not asked to appear in the counseling held on 07.04.2016, the petitioner appeared there and asked the respondents why he was not called to appear in the counseling against 4(four) seats earmarked for the sponsored UR candidates. The petitioner has clearly admitted that he was conveyed that he did not secure 50% marks in the eligibility test as per the guidelines of the MCI and hence he was not called to appear in the counseling as he could not be selected. The petitioner has, in this context, asserted that nowhere in the Information Booklet (Prospectus), 2016 it has been provided that minimum 50% marks is to be obtained in the eligibility test out of 400 marks for getting admission in the PG course (MD/MS), 2016. The petitioner has, in this context, asserted that nowhere in the Information Booklet (Prospectus), 2016 it has been provided that minimum 50% marks is to be obtained in the eligibility test out of 400 marks for getting admission in the PG course (MD/MS), 2016. The petitioner as sequel to the said statement has averred that the said omission is an indicator to the fact that the MCI guidelines were never adopted by the respondents for admission in the PG courses. Before the eligibility test, the respondents No.1 & 2 did not convey the candidates that 50% marks out of 400 is to be obtained in the entrance examination for appearing in the counseling or for admission against the available seats for PG courses. The subsequent educational notification dated 01.04.2016, Annexure-P/5 to the writ petition, whereby it was communicated that those who secured qualifying marks as per the MCI norms would only be eligible to attend the counseling cannot be read in the educational notification dated 28.12.2015 since that condition was incorporated after the eligibility test was over. The petitioner also admitted that the MCI by the notification dated 21.12.2010 has rearranged the sub clause (iii) of Clause 9 of the said notification which reads as under: “(iii) In order to be eligible for admission to any postgraduate courses in a particular academic year it shall be necessary for a candidate to obtain minimum 50% marks in the National Eligibility-cum-Entrance Test for postgraduate courses’ held for the said academic year.” 4. From the Post Graduate Medical Education Regulations, 2000 as amended from time to time by the Medical Council of India, the MCI in short, which has been framed in exercise of the power conferred by Section 33 read with Section 20 of the India Medical Council Act, 1956 with previous sanction of the Central Government, it transpires inter alia that the students for admission in the Post Graduate Medical Courses shall be selected strictly on the basis of their academic merit. By the amendment carried out in Clause 9(2) in the said Regulation by the notification, published in the Gazette of India dated 20.10.2008, the following has been emerged after substitution: “Provided that wherever ‘Entrance Test’ for postgraduates admission is held by a state government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50 percent for general category candidates and 40 percent for the candidates belonging to the Scheduled Caste, Scheduled Tribes and Other Backward Classes.” It has been further provided that: “in determining the merit and the entrance test for the postgraduate admission weightage in the marks may be given as an incentive at the rate of 10% of the marks obtained for each year in service in remote or difficult areas upto the maximum of 30% of the marks obtained.” In view of that revision, the petitioner has launched an alternative argument that if the weightage is added to the marks obtained by him in the eligibility test, he has to be deemed to have secured the minimum qualifying marks. 5. The petitioner has further challenged the selection of the respondent No.3 in the open category as he had crossed maximum age of 45 years on 18.12.2015 when the Educational Notification for the eligibility test was issued. In Clause 2.1.1.C of the Information Booklet, 2016 it has been categorically stipulated that both for the sponsored and open category candidates, the upper age limit shall be 45 years. In Clause 2.1.1.C of the Information Booklet, 2016 it has been categorically stipulated that both for the sponsored and open category candidates, the upper age limit shall be 45 years. Further, the petitioner has asserted that the minimum 50% mark in the eligibility test is not steadfast or inflexible and it can be relaxed inasmuch as the proviso to Clause 9 (iii) of the Regulation postulates as under: “Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Post Graduate Courses, the Central Government in consultation with Medical Council of India may at his discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.” The petitioner has contended thereupon that since there are vacant seats and no eligible candidate is found, the minimum percentage of marks shall be relaxed for this academic session and the petitioner be accommodated in view of his position in the inter se merit list vis-à-vis the sponsored category candidates. 6. Mr. S. Deb, learned senior counsel appearing for the petitioner has reverberated the averments made in the writ petition in order to persuade this Court for granting the reliefs, urged in the writ petition. The petitioner has urged this Court (i) to cancel the entire process of selection (ii) to cancel the selection of the respondent No.3 and (iii) to direct the respondents No.1 & 2 to hold the counseling afresh on the inter se merit list and select the petitioner against 4(four) UR seats in the sponsored category for admission in the Post Graduate Courses in AGMC. Mr. Deb, learned senior counsel has made a robust endeavour to distinguish the decisions of the apex court in State of M.P. vs. Gopal D. Tirthani, reported in (2003) 7 SCC 83 which has approvingly relied and restated what was expounded in Harish Verma and Ors. vs. Ajay Srivastava and Anr., reported in (2003) 8 SCC 69 . According to Mr. Deb, learned senior counsel, those decisions do not lay down any law or any interpretation constituting precedent and as such, those decisions cannot be applied in the present context. vs. Ajay Srivastava and Anr., reported in (2003) 8 SCC 69 . According to Mr. Deb, learned senior counsel, those decisions do not lay down any law or any interpretation constituting precedent and as such, those decisions cannot be applied in the present context. He has further stated that the decision of the apex court in Christian Medical College, Vellore and others vs. Union of India and others, reported in (2014) 2 SCC 305 , where both the decisions of State of M.P. vs. Gopal D. Tirthani and Harish Verma and Ors. vs. Ajay Srivastava and Anr. were considered and has been recalled by the apex court by their order dated 11.04.2016 in a batch of review petitions including the Review Petition(C) Nos.21592268 of 2013 in the following words: “6. Suffice it is to mention that the majority view has not taken into consideration some binding precedents and more particularly, we find that there was no discussion among the members of the Bench before pronouncement of the judgment. 7. We, therefore, allow these review petitions and recall the judgment dated 18th July, 2013 and direct that the matters be heard afresh. The review petitions stand disposed of as allowed.” Mr. Deb, learned senior counsel having referred to that order of recall has contended that the decisions rendered in State of M.P. vs. Gopal D. Tirthani and Harish Verma and Ors. vs. Ajay Srivastava and Anr. cannot no more be held as good law. According to him, since the minimum qualifying marks as prescribed by the Post Graduate Medical Education Regulations, 2000 was not incorporated in the Information Booklet, 2016, AnnexureP/7 to the writ petition, or in the Educational Notification dated 28.12.2015, Annexure-P/1 to the wit petition, the prescription of minimum qualifying marks cannot be applied for selection by the Educational Notification dated 01.04.2015, Annexure-P/5 to the writ petition, and hence, by refusing to call the petitioner for appearing in the counseling which was held on 07.04.2016, the respondents No.1 and 2 have acted illegally and arbitrarily. 7. Mr. S. Chakraborty, learned Addl. 7. Mr. S. Chakraborty, learned Addl. G.A appearing for the respondents No.1 and 2 has refuted such submissions and stated that the petitioner cannot maintain this writ petition urging this court for exercising its certiorari jurisdiction for quashing the selection for the Post Graduate courses and consequent thereupon for direction to select the candidates on fresh counseling and on the basis of the merit list for UR seats meant for sponsored candidates. On instruction, Mr. Chakraborty, learned Addl. G.A has submitted that at the time of sponsoring the respondent No.3 he was below 45 years. 8. We have given an anxious consideration to what has been stated in the writ petition or what has been submitted before us during the hearing. At the outset, we are constrained to observed that analogy of Mr. Deb, learned senior counsel appearing for the petitioner that since the decisions of State of M.P. vs. Gopal D. Tirthani and Harish Verma and Ors. vs. Ajay Srivastava and Anr. had been cited in Christian Medical College, Vellore and others vs. Union of India and others and the decision in Christian Medical College, Vellore and others vs. Union of India and others has been recalled by the order dated 11.04.2016 in the batch of review petitions as stated, the decisions in State of M.P. vs. Gopal D. Tirthani and Harish Verma and Ors. vs. Ajay Srivastava and Anr. have lost their governing force cannot be accepted. Even in the decision of Christian Medical College, Vellore and others vs. Union of India and others, the apex court has made a passing reference of those decisions in the Paras 116 and 135 in the following manner: “116. Mr. Gupta also relied on the decision of this Court in Bharati Vidyapeeth vs. State of Maharashtra: (2004) 11 SCC 755 , wherein while following the decision in Preeti Srivastava vs. State of M.P.: (1999) 7 SCC 120 , it was reiterated that prescribing standards would include the process of admission. Mr. Gupta submitted that the said decision had, thereafter, been followed in Prof. Yashpal vs. State of Chhattisgarh : (2005) 5 SCC 420, State of M.P. vs. Gopal D. Tirthani : (2003) 7 SCC 83 , Harish Verma vs. Ajay Srivastava: (2003) 8 SCC 69 and Medical Council of India vs. Rama Medical College Hospital & Research Centre: (2012) 8 SCC 80 . Yashpal vs. State of Chhattisgarh : (2005) 5 SCC 420, State of M.P. vs. Gopal D. Tirthani : (2003) 7 SCC 83 , Harish Verma vs. Ajay Srivastava: (2003) 8 SCC 69 and Medical Council of India vs. Rama Medical College Hospital & Research Centre: (2012) 8 SCC 80 . * * * * * * * * 135. As to the weightage of marks being given up to a maximum of 30%, to the government servants serving in remote areas, Mr. Gupta said that the same had been upheld by this Court in State of M.P. vs. Gopal D. Tirthani.” It is worthwhile to observe that unless a precedent is distinguished or overruled expressly, the said precedent is bound to regulate the future discourse. On keen scrutiny of Christian Medical College, Vellore and others vs. Union of India and others, we do not find that the apex court even made any comment on the merit of the decisions of State of M.P. vs. Gopal D. Tirthani and Harish Verma and Ors. vs. Ajay Srivastava and Anr. Hence, we reject the analogy as advanced by Mr. Deb, learned senior counsel appearing for the petitioner in this regard. 9. The sheet-anchor of the challenge in this writ petition is that the respondents would have added the weightage with the marks obtained in the eligibility test by the petitioner and thereafter, determined the minimum qualifying marks. The apex court having noted the law decided in State of M.P. vs. Gopal D. Tirthani has observed and enunciated the law in Harish Verma and Ors. vs. Ajay Srivastava and Anr. as under “18. Out of the several conclusions summed up by the Court the one relevant for the purpose of present case is: (SCC P.107, Para 36) ‘36.(2). There can be only one common entrance test for determining eligibility for post-graduation for in service candidates and those not in service. The requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the Medical Council of India Regulations framed in this behalf.’ 19. There can be only one common entrance test for determining eligibility for post-graduation for in service candidates and those not in service. The requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the Medical Council of India Regulations framed in this behalf.’ 19. The Court has observed that subject to securing the minimum qualifying marks if the in service candidates formulate a class by themselves for whom a separate channel of entry has been carved out then within the group there may be scope for assigning weightage for rural service rendered, for the purpose of determining the order of merit inter se, but such weightage cannot be utilized for the purpose of relaxing the condition as to minimum qualifying marks as prescribed by the Medical Council of India. 20. The decision of the Full Bench of the High Court, having been rendered in ignorance of the binding law laid down by the majority opinion in the Constitution Bench decision of this Court in Dr. Preeti Srivastava and Anr. (supra) and also being inconsistent with the decision of this Court in the case of Gopal D. Tirthani (supra) is liable to be set aside. The appeals are allowed. The impugned judgment of the Full Bench of the High Court of Rajasthan is set aside and the judgment given by the learned single Judge is restored. 21. As a consequence, the admissions given to such of the inservice candidates who have secured marks less than the minimum prescribed by Regulation 9 framed by the Medical Council of India are struck down and set aside. The counseling shall have to be done afresh to the extent necessary. We are conscious of the fact that there would be some delay in commencement of postgraduation studies and to some extent the 2002 and 2003 batches would overlap. However, that is a situation which cannot be avoided. It is an inevitable consequence for which the successful candidates for the year 2002 and 2003, i.e. those who will be held entitled to admission in postgraduation courses of studies consequent upon this judgment, cannot be made to suffer for no fault of theirs. It will be for the State of Rajasthan, if necessary then in consultation with the Medical Council of India, to sort out the difficulties and to run the regular courses of the studies.” 10. It will be for the State of Rajasthan, if necessary then in consultation with the Medical Council of India, to sort out the difficulties and to run the regular courses of the studies.” 10. A simple reading of the Para19 of Harish Verma and Ors. vs. Ajay Srivastava and Anr. would unambiguously indicate that weightage cannot be added for purpose of relaxing the condition as to the minimum qualifying marks as prescribed by the MCI. Hence, this plea is without substance, inasmuch as if this plea is accepted there would be violence to the guarantee of excellence. In Dr. Preety Srivastava vs. State of M.P., reported in (1999) 7 SCC 120 , the apex court had espoused that there is need for common entrance test and the minimum qualifying marks, as determined by the expert in the field of medical qualification. 11. The jurisprudential objection as raised by Mr. Chakraborty, learned Addl. G.A appearing for the respondents deserves to be appreciated in view of the decision of the apex court in B. Srinivasa Reddy vs. Karnataka Urban Water Supply and Drainage Board Employees' Association and Ors., reported in (2006) 11 SCC 731 (II), where it has been held that: “78. The High Court, in the instant case, was not exercising certiorari jurisdiction. Certiorari jurisdiction can be exercised only at the instance of a person who is qualified to the post and who is a candidate for the post. This Court in Dr. Umakant Saran v. : State of Bihar: (1973)1 SCC 485 held that the appointment cannot be challenged by one who is himself not qualified to be appointed. In Kumari Chitra Ghose v. : Union of India : (1969) 2 SCC 228 , a Constitution Bench of this Court held as under: ‘12.The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to the reserved seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. The assumption that if nominations to reserved seats are not in accordance with the rules all such seats as have not been properly filled up would be thrown open to the general pool is wholly unfounded.’ ” In view of that decision of the apex court, we hold that the petitioner is not entitled to maintain this writ petition for claiming the reliefs as above. Having held so, we decline to scrutinize the veracity of the statement of the petitioner that the respondent No.3 was above 45 years on the day when the Education Notification dated 28.12.2015 was issued, having noted the statement in this regard made Mr. Chakraborty, learned Addl. G.A. 12. These questions had too fallen for consideration before this Court in Dr. Anup Kr. Laha vs. State of Tripura and others and by the judgment dated 28.04.2015 delivered in W.P.(C) 251 of 2016, AnnexureP/6 to the writ petition, this Court had observed as under: “15. Having regard to the rival contentions as raised in the Bar, we are of the considered opinion that the petitioner cannot maintain the writ petition as he failed to secure the minimum qualifying marks. We are of the further opinion that in view of the decision in Harish Verma and Ors. vs. Ajay Srivastava and Anr., the weightage cannot be added to the marks obtained in the Common Entrance Test for purpose of determining whether the petitioner had secured the minimum qualifying marks or not. Only on acquiring minimum qualifying marks (50% for the UR category, which the petitioner did not secure) the weightage shall be added in the class of sponsored candidates for having the inter se merit position. No other method can be permitted in view of the above decision of the apex court. We are in agreement that the petitioner also cannot claim his admission against the seat earmarked for reserved category candidates. Therefore, the petitioner lacks in locus standi to urge this Court for exercising its certiorari jurisdiction for quashing the selection and nomination of the respondents No.6 & 7, both belong to the SC category.” 13. We are in agreement that the petitioner also cannot claim his admission against the seat earmarked for reserved category candidates. Therefore, the petitioner lacks in locus standi to urge this Court for exercising its certiorari jurisdiction for quashing the selection and nomination of the respondents No.6 & 7, both belong to the SC category.” 13. The other plea as raised that since the Educational Notification dated 28.12.2015, AnnexureP/1 to the writ petition, did not incorporate the clause of minimum qualifying marks, the clause relating minimum qualifying marks in the Post Graduate Medical Education Regulations, 2002 cannot be read in the said notification dated 28.12.2015 or that the subsequent Educational Notification dated 01.04.2016, AnnexureP/5 to the writ petition cannot be applied in the selection, cannot be accepted by us in view of the well settled proposition of law that for purpose of selection, process declared by the statutory rules or regulation can universally be applied or can be read in the employment notice when in the process it has been omitted to be referred or incorporated. 14. In view of what has been observed above, we do not find any merit in this writ petition. Accordingly, the writ petition is dismissed. There shall be no order as to costs. Before parting with the records, we are persuaded to note that the petitioner does not have any right to approach this Court for relaxing the minimum qualification marks. In terms of the proviso as quoted above it is the Medical Council of India and the Medical Council of India alone is competent to relax such qualifying marks in the exceptional situation when for nonavailability of candidates having minimum qualifying marks the seats remained vacant in a particular year. Such discretion can be exercised only by previous consultation with the Central Government. If the State is of the view that such relaxation is required in the public interest, they shall be at liberty to approach the Medical Council of India for taking the course of relaxation.