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2020 DIGILAW 114 (TRI)

Md. Maha Modul Hasan v. State of Tripura

2020-09-29

AKIL ABDUL HAMID KURESHI, S.G.CHATTOPADHYAY

body2020
JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is directed against the Judgment of the learned Single Judge dated 28.06.2018 passed in W.P. (C) No. 523 of 2018. 2. Brief facts are as under: Appellant is the original petitioner. After passing his Higher Secondary examination in the year 2015, the petitioner appeared in the Joint Entrance Examination ('JEE', for short) of the year 2016 conducted by Tripura Board of Joint Entrance Examination, respondent No. 2 for the purpose of Medical and Para-Medical courses. The petitioner was placed at merit position No. 77 in a group of PCB so called since the candidates would have Physics, Chemistry and Biology as their principal subjects in Higher Secondary examination. The petitioner was admitted to the Bachelor for Dental Surgery Course (BDS) in the Regional Dental College, Guwahati on the basis of his merit position. The respondent No. 3 i.e. the Director, Medical Education, Government of Tripura issued a Memorandum dated 19.07.2016 nominating the petitioner for admission in the 1st year BDS course in the Regional Dental College, Guwahati. The petitioner accepted such admission and reported to the college and completed the necessary admission formalities. He attended the classes for the 1st semester of BDS course for the year 2016-17. The petitioner also appeared in the BDS 1st year Professional Examination conducted by Srimanta Sankaradeva University of Health Sciences, the respondent No. 5. The petitioner cleared the examinations and a mark sheet was issued to him on 15.09.2017. 3. It appears that the Dental Council of India had objected to the petitioner's admission in the said course on the ground that he had secured less than 50% marks in Physics, Chemistry and Biology subjects in his H.Sc. examination, which was in violation of the relevant regulation framed by the Dental Council of India. This was conveyed by the Dental Council to the Principal of the college under a letter dated 28.09.2017. On 07.10.2017, the Principal of the College wrote to the Director of Medical Education, Government of Tripura in which he brought to the notice of the said authority that the Dental Council of India has observed that the petitioner had received less than 50% marks in Physics, Chemistry and Biology and since he belongs to General category, his nomination for admission was in violation of the provisions for selection of the students in BDS course as prescribed by the relevant Regulations. In response to the said letter, the Director of Medical Education, Government of Tripura wrote to the Secretary, Dental Council of India on 04.12.2017 and admitted that there was an error in admitting the petitioner to the said course. It was explained that this error occurred since the petitioner had scored more than 50% marks in his H.Sc. examination if the marks of English subject were also taken into account. It was, therefore, urged that the Council may give one time relaxation, particularly, looking to the fact that the candidate had already completed the 1st year of the course. The Medical Council of India, however, did not accept this request upon which the Principal of the Regional Dental College, Guwahati issued an Office Order dated 01.02.2018 discharging the petitioner from the said college. 4. This order, the petitioner had challenged in the writ petition. The learned Single Judge held that while admitting the petitioner there was breach of statutory regulation. The regulation was clear and required that a candidate for admission to the said course must have secured not less than 50% marks in qualifying examination in Physics, Chemistry and Biology subjects. According to the learned Judge, the petitioner should be aware about such requirement despite which he applied. The fact that there was no misrepresentation on part of the petitioner on relevant aspects, according to the learned Single Judge was of no consequence. It was observed that the petitioner appeared in the examination and pursued the course at his own peril. However, that by itself could not permit the Court to restore the illegality which once pointed out was corrected. 5. Appearing for the appellant-original petitioner, learned counsel, Mr. A. Pal submitted that minimum cut off marks in the qualifying examination was prescribed in the selection process under the relevant regulations and not in the regulation pertains into eligibility criteria. In other words, according to the counsel, minimum cut off marks did not form part of the eligibility criteria. Therefore, even if there was violation of the said requirement, the same would not render the petitioner ineligible for admission. If at all, admitting the petitioner would amount to an irregularity, which can always be cured. Counsel submitted that since admittedly the petitioner had not made any misrepresentation about his marks, such irregularity ought to have been ignored. Therefore, even if there was violation of the said requirement, the same would not render the petitioner ineligible for admission. If at all, admitting the petitioner would amount to an irregularity, which can always be cured. Counsel submitted that since admittedly the petitioner had not made any misrepresentation about his marks, such irregularity ought to have been ignored. Since the petitioner had already completed 1st year of degree course, his admission should have been protected. Counsel relied on certain decisions reference to which would be made at a later stage. 6. On the other hand, learned counsel, Mr. C.S. Sinha appeared for the State authorities and submitted that the authorities had committed a bona fide error in recommending the petitioner for admission. The Medical Council was, therefore, requested to grant one-time relaxation. Since this request was not accepted, the authorities had no choice but to cancel the admission of the petitioner. 7. Facts are not seriously in dispute. Petitioner passed the H.Sc. examination, which necessary subjects of Physics, Chemistry and Biology as well as English as a compulsory subject. The average of marks obtained by the petitioner in such qualifying examination in the subjects of Physics, Chemistry and Biology came to 46.6%, which was clearly below 50%. It appears that if one were to add the marks secured by the petitioner in English subject also in the said examination, the percentage of marks would exceed 50%. In this context, we may peruse the relevant Regulations. 8. In exercise of the powers conferred under Section 20 of the Dentists Act, 1948, the Dental Council of India revised BDS Course Regulations 2007 (hereinafter to be referred to as the said Regulations of 2007). Regulation-I pertains to admission to Dental Course-Eligibility Criteria and lays down various criteria which a candidate must satisfy for being admitted to the Bachelor of Dental Surgery Course. Regulation-II pertains to Selection of Students, relevant portion of which reads as under: II. Selection of Students: The selection of students to dental college shall be based solely on merit of the candidate and for 'determining merit, the following criteria shall be adopted uniformly throughout the country: 5. Regulation-II pertains to Selection of Students, relevant portion of which reads as under: II. Selection of Students: The selection of students to dental college shall be based solely on merit of the candidate and for 'determining merit, the following criteria shall be adopted uniformly throughout the country: 5. Procedure for selection to BDS course shall be as follows:- i. in case of admission on the basis of qualifying, examination under clause (1) based on merit, candidate for admission to BDS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry, and Biology at the qualifying examination. In respect of candidates, belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above and must have passing marks in English. ii. In case of admission on the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less that 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or any other categories notified by the Government the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above:" 9. As per sub-Regulation 5 of Regulation-II thus for selection to the BDS course, a candidate must have secured a minimum of 50% marks taken together in Physics, Chemistry and Biology subjects in the qualifying examination if he belongs to an Un-Reserved category. Since the petitioner belonged to the said Un-Reserved category, in order to secure selection for admission to BDS course, he ought to have secured a minimum of 50% marks in H.Sc. examination in Physics, Chemistry and Biology subjects taken together. In clear terms, thus, the petitioner could not have been admitted to the said course. Since the petitioner belonged to the said Un-Reserved category, in order to secure selection for admission to BDS course, he ought to have secured a minimum of 50% marks in H.Sc. examination in Physics, Chemistry and Biology subjects taken together. In clear terms, thus, the petitioner could not have been admitted to the said course. The first stage for selection was that he must have secured minimum 50% marks in the said three subjects in the qualifying examination. Appearing in the entrance test and securing qualifying marks and merit position would be the subsequent steps. There was clearly thus an error on part of the Director of Medical Education in recommending the petitioner for admission to a Dental college in the BDS course. 10. It is true that the regulations prescribed eligibility criteria separately from certain requirements, which are made part of the selection process. However, this distinction in the Regulations would be of no consequence since even Regulation-II has a statutory force and in our opinion, contains certain mandatory prescriptions. Merely because this requirement of securing minimum 50% marks in Physics, Chemistry and Biology subjects in the qualifying examination does not find place in the eligibility criteria, the rigors of this requirement cannot be diluted. Admission granted to a student, who did not fulfill this requirement, thus, was clearly in breach of statutory mandatory regulation and correctly not protected by the learned Single Judge. 11. It is true that the petitioner had not withheld any material information from the authorities. It is equally true that the Director of Higher Education has admitted error on part of the administration in recommending the name of the petitioner for admission to the BDS course. The explanation offered for such error to have occurred is also quite acceptable. According to the authorities, the combined total of the mark secured by the petitioner in Physics, Chemistry, Biology and English subjects were taken into account for the purpose of considering whether he had secured a minimum 50% marks or not. However, such equitable considerations must be weighed with the ground realities and which are that the petitioner's admission was cancelled on 01.02.2018. Two and a half years were passed since then. It is not possible to put the clock back at this distant point of time. The passage of time and subsequent events have made it impossible to grant any equitable relief to the petitioner. Two and a half years were passed since then. It is not possible to put the clock back at this distant point of time. The passage of time and subsequent events have made it impossible to grant any equitable relief to the petitioner. 12. In case of Mahendra Mension and others vs. State of Rajasthan and others in the judgment dated 20.04.2018, the learned Single Judge of the Rajasthan High Court was considering a situation where against 1350 seats in BDS course including in Government colleges only 500 candidates had been admitted and 850 seats were vacant. At one stage, the Central Government had also allowed the State of Rajasthan to take appropriate decision as it deemed fit in the circumstances of the case for lowering the percentile. Subsequently, such decision was changed by the Government of India. It was in this background, the learned Single Judge held that it was too late for the Central Government to withdraw the delegation for exercise of the discretion for reducing the minimum marks. It was observed that the State had taken steps to reduce the percentile in special exigency and in order to fill up the vacant seats and that it was done after the Central Government had allowed it to do so. It was in such background that the learned Single Judge saved the admissions already granted. 13. In the decision of Supreme Court in case of Rajan Purohit and others vs. Rajasthan University of Health Sciences and others, reported in (2012) 10 SCC 770 , which was also relied upon by the counsel for the petitioner, it was held that the college was at fault in not holding an entrance examination for determining the inter se merit of the students, who had applied to the said college for admission in the MBBS seats and thereby, the college administration did not follow a transparent and fair admission procedure and admitted 117 students, who were not to be blamed for these lapses on part of the college. It was in such background the admission of the concerned students were protected. It is, however, noteworthy that while doing so, each student was directed to pay a sum of Rs. 3 lakhs to the State Government and that the order was in exercise of powers under Article 142 of the Constitution. It was in such background the admission of the concerned students were protected. It is, however, noteworthy that while doing so, each student was directed to pay a sum of Rs. 3 lakhs to the State Government and that the order was in exercise of powers under Article 142 of the Constitution. This decision of the Supreme Court thus does not lay down the ratio, which can be applied in the present case. 14. In the result, the appeal is dismissed. Pending application, if any, also stands disposed of.