Dr. Vivek Kumar vs Union Of India Thru Secy.Ministry ...
2017 Latest Caselaw 314 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 5
 

 
Case :- MISC. SINGLE No. - 2034 of 2016
 

 
Petitioner :- Dr. Vivek Kumar
 
Respondent :- Union Of India Thru Secy.Ministry Of Health Edu. & Ors.
 
Counsel for Petitioner :- Pradeep Kumar Singh,Abhijit Raj
 
Counsel for Respondent :- C.S.C.,A.S.G.,Ankit Raj Chaudhary,Anupras Singh,Disha Chandra,Gyanendra Kumar Srivastav,Raj Kumar Singh,Sanjay Bhasin
 

 
Hon'ble Anil Kumar,J.

Heard Sri H.G.S. Parihar, Senior Advocate assisted by P.K. Singh ''Vats', learned counsel for the petitioner, learned Assistant Solicitor General of India for opposite party no.1, learned Standing Counsel for opposite party no.2, Sri G.K. Srivastava, learned counsel for opposite party no.4, Sri Anupras Singh, learned counsel for opposite parties no.5 and 6 and perused the record.

Sri H.G.S. Parihar , learned counsel for the petitioner submits that petitioner has passed MBBS Course from King George Medical University in the year 2006 and thereafter he obtained MS degree from Sarojini Naidu Medical College, Agra in the year 2008. On 24.4.2014 the State Government has decided to conduct All India DM/ Mch Entrance Examination , 2014 for the session 2014-15 and the King George Medical University Lucknow was authorized to conduct the entrance examination for admission in six seats in Mch ( CTVS) Course. Out of six seats , two admission were to be made in King George Medical University, one admission was to be made in Dr. Ram Mahohar Lohia Institute of Medical Sciences, Lucknow and three admissions were to be made in the GSV Medical College,Kanpur. For the purpose of filling of aforesaid seats , a brochure was also published by the Chief Coordinator , All India DM/MCH Entrance Examination, 2014 King George Medical University, U.P. Lucknow.

It is further submitted on behalf of the petitioner that the petitioner had appeared in the said examination and the result of Entrance Examination, 2014 was declared and the petitioner was placed at 21st rank in the aforesaid examination and after counseling, was allotted the seat of MCh (CTVS) Course in Dr. Ram Manohar Lohia Institute of Medical Science, U.P. Lucknow.

On 31.7.2015, petitioner got admission in Dr. Ram Manohar Lohia Institute of Medical Sciences U.P. Lucknow in MCh (CTVS) Course and started his studies. While petitioner pursuing his studies, Medical Council of India , New Delhi/ opposite party no.4 passed an order dated 2.12.2015 ( Annexure no.1) addressed to the Principal , Dr. Ram Mahohar Lohia Insitute of Medical Science , U.P. Lucknow thereby issuing a direction to cancel the admission of the petitioner as he has got less than 50% marks in the entrance test. so his admission in MCh (CTVS) Course is contrary to regulation as such the institution is directed to discharge the petitioner and submit his compliance. In pursuance of the said fact , the order dated 16.12.2015 ( Annexure no.2) has been passed by opposite party no.3/ Director General , Medical Eduction and Training,U.P. Lucknow and order dated 16.12.2015 ( Anexure no.3) has been passed by opposite party no.6/ Director , Dr. Ram Manohar Lohia Institute of Medical Sciences , Lucknow .

Sri H.G.S. Parihar, learned counsel for the petitioner while challenging the impugned orders submits that once the petitioner has been admitted in MCh (CTVS) Course then the action on the part of opposite parties thereby cancelling the petitioner's admission of MCh (CTVS) Course is utter violation of principle of natural justice and prior to passing the aforesaid orders, no opportunity of hearing has been given to the petitioner to put forward his case as such the impugned orders is in violation of principle of natural justice and Article 14 of the Constitution of India.

He further submits that against six seats for MCh (CTVS) Course, three candidates had turned up for admission in first counseling including the petitioner and even in second and third counseling no candidate had turned up as such it is evident that sufficient number of candidate failed in securing the minimum percentage of marks as such the Central Government in consultation with opposite party no.4/ Medical Council of India, New Delhi would have relaxed the 50% percent of cut off marks if any as the super specialty seats cannot be left unfilled.

Accordingly, it is submitted by Sri H.G.S. Parihar, learned counsel for the petitioner that impugned order being contrary may be set aside looking into the future career of the petitioner who was pursuing the MCh (CTVS) Course from Dr. Ram Manohar Lohia Institute of Medical Sciences , Lucknow .

Sri G.K. Srivastava, learned counsel appearing opposite party no.4/ Medical Council of India, New Delhi submits that in respect to admission for MCh (CTVS) Course , opposite party no.4 has issued a regulation known as Medical Council of India Post Graduate Medical Education Regulations, 2000 and as per Regulation 9 of the aforesaid regulation deals for selection of Post Graduate students and as per proviso of section 9(2) of the Regulation ,2000 provides that whether ''Entrance Test' for postgraduates admission is held by the 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 candidate belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes.

In the present case petitioner has not possessed/ secured 50% marks so in view of the said fact opposite party no.4/ Medical Council of India issued a order dated 2.12.2015 (Annexure no.1) to the opposite party no.6/ Principal, Dr. Ram Manohar Lohia Institute of Medical Science , Lucknow inter alia stating therein that as per the prevailing regulation petitioner has obtained less than 50% marks ( 35%) so his admission is contrary to regulation hence he should be discharged from pursing the MCh (CTVS) Course, so there is no illegality or infirmity in the impugned order under challenge in the present writ petition.

Sri H.G.S. Parihar, learned counsel for the petitioner, in reply, submits that there is no fault on the part of the petitioner in the matter so he cannot be penalised, so keeping in view of the said facts as well as the fact that petitioner was pursing his studies in MCh (CTVS) Course from Dr. Ram Manohar Lohia Institute of Medical Sciences , Lucknow , so he may be allowed to do so .

I have heard learned counsel for the parties and gone through the record.

It is not in dispute between the parties that State Government vide its order dated 24.4.2014 decided to conduct All India DM/Mch Entrance Examination ,2014 for the session 2014-2015 and the King George Medical University , Lucknow was authorized to conduct the entrance examination for admission in six seats in Mch (CTVS) Course which is to be done in pursuance of Regulation known as Medical Council of India Post Graduate Medical Education Regulations, 2000 and Regulation 9 deals in respect of selection of Post Graduate students and the proviso of section 9(2) of the said Regulation,2000 provides that the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50% for general category candidates.

In regard to the power framing of regulation by Medical Council of India and its binding effect Hon'ble the Apex Court in the case of Dr. Preeti Srivastava and another Vs. State of M.P. and others(1999) 7 SCC 120 , in para nos. 52,57,58,59,66 and 72 has held as under:-

"52.Mr. Salve, learned Counsel appearing for the Medical Council of India has, therefore, rightly submitted that under the Indian Medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia standards of post-graduate medical education. In the exercise of its powers under Section 20 read with Section 33 the Indian Medical Council has framed Regulations which govern post-graduate medical education. These Regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List-III, make rules and regulations which are in conflict with or adversely impinge upon the Regulations framed by the Medical Council of India for post-graduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List-I, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List-III is subject to Entry 66 of List-I.

57.In the case of Medical Council of India v. State of Karnataka and Ors. , a bench of three judges of the Court has distinguished the observation made in Kumari Nivedita Jain (supra), he has also disagreed with Ajay Kumar Singh and Ors. v. State of Bihar and Ors. (supra) and has come to the conclusion that the Medical Council Regulations have a statutory force and are mandatory. The Court was concerned with admissions to the M.B.B.S. course and the Regulations framed by the Indian Medical Council relating to admission to the M.B.B.S. course. The Court took note of the observations in State of Kerala v. Kumari T.P. Roshana and Anr., : (1979) 1 SCC 572 at page 580, to the effect that under the Indian Medical Council Act, 1956, the Medical Council of Indian has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent substandard entrance qualifications for medical courses. These observations would apply equally to post-graduate medical courses. We are in respectful agreement with this reasoning.

58.The Regulation governing post-graduate medical education already referred to earlier, provide for admission on the basis of merit. The Regulations, however, have not clearly spelt out whether there can or cannot be, any reservations for Scheduled Castes, Scheduled Tribes and/or backward class candidates at the stage of post-graduate medical admissions. Whether such a reservation would impinge on the standards or not would depend upon the manner in which such reservation is made, and whether the minimum qualifying marks for the reserved categories are properly fixed or not. It is for the Medical Council of India to lay down proper norms in this area and to prescribe whether the minimum qualifying marks for the admission of students in the reserved category can be less than the minimum qualifying marks for the general category students at the postgraduate level; and if so, to what extent. Even if we accept the contention of the respondents that for the reserved category candidates also, their inter se merit is the criterion for selection, although for the reserved category of candidates lower minimum qualifying marks are prescribed, the merit which is envisaged under the Indian Medical Council Act or its Regulations is comparative merit for all categories of candidates. For admission to a post-graduate course in medicine, the merit criterion cannot be so diluted by the State as to affect the standards of postgraduate medical education as prescribed under the Regulations framed by the Indian Medical Council. It is for the Indian Medical Council to consider whether lower minimum qualifying marks can be prescribed at the post-graduate level for the reserved category candidates. We have already opined that the minimum qualifying marks of 20% as compared to 45% for the general category candidates appear to be too law. This would make if difficult for the reserved category candidates to bring their performance on a par with general category candidates in the course of post-graduate studies and before they qualify in the post-graduate examination. It is also necessary in public interest to ensure that the candidates at the post-graduate level have not just passed the examination, but they have profited from their studies in a manner which makes them capable of making their own contribution, that they are capable of diagnosing difficult medical conditions with a certain degree of expertise, and are capable of rendering to the ill, specialized services of a certain acceptable standard expected of doctors with specialized training.

59.The States of U.P. and Madhya Pradesh have contended that if the minimum qualifying marks are raised in the case of the reserved category candidates, they will not be able to fill all the seats which are reserved for them. The purpose, however, of higher medical education is not to fill the seats which are available by lowering standards; nor is the purpose of reservation at the stage of post-graduate medical education merely to fill the seats with the reserved category candidates. The purpose of reservation, if permissible at this level, is to ensure that the reserved category candidates having the requisite training and calibre to benefit from post-graduate medical education and rise to the standards which are expected of persons possessing post-graduate medical qualification, are not denied this opportunity by competing with general category candidates. The general category candidates do not have any social disabilities which prevent them from giving of their best. The special opportunity which is provided by reservation cannot, however, be made available to those who are substantially below the levels prescribed for the general category candidates. It will not be possible for such candidates to fully benefit from the very limited and specialised post-graduate training opportunities which are designed to produce high calibre well trained professionals for the benefit of the public. Article 15(4) and the spirit of reason which permeates it, do not permit lowering of minimum qualifying marks at the post-graduate level to 20% for the reserved category as against 45% for the general category candidates. It will be for the Medical Council of India to decide whether such lowering is permissible and if so to what extent. But in the meanwhile at least the norms which are prescribed for admission to the M.B.B.S. courses ought not to be lowered at the post-graduate level. The lowering of minimum qualifying marks for admission to the M.B.B.S. courses has been permitted by the Indian Medical Council upto 35% for the reserved category as against 45% for the general category. The marks cannot be lowered further for admission to the post-graduate medical courses, especially when at the super speciality level it is the unanimous view of all the judgments of this Court that there should be no reservations. The would also imply that there can be no lowering of minimum qualifying marks for any category of candidates at the level of admission to the super-specialities courses.

66.In the group of civil appeals decided by Post-graduate Institute of Medical Education and Research, Chandigarh and Ors. v. K.L, Narasimhan and Anr. (supra), the appeal of the present petitioners had challenged -on Admission Notice No. 15/90 issued in the Indian Express of 25.11.1990 under which six seats for the super specialty courses of D.M./M.C.H. were kept reserved for the Scheduled Caste and the Scheduled Tribe candidates. The petitioners rightly contend that at the super specialty level there cannot be any relaxation in favour of any category of candidates Admissions should be entirely on the basis of open merit.

72.We, therefore, hold that the judgment of this Court in Post Graduate Institute of Medical Education and Research, Chandigarh and Ors. v. K.L. Narasimhan and Anr., (supra) cannot be read as holding that any type of relaxation is permissible at the super-specialities level."

So far as the matter in regard to fixing of maximum percentage of marks as eligibility for admission to Post Graduate Medical Course for general category candidates as per regulation issued by Medical Council of India Hon'ble the Apex Court in the case of State of Punjab Vs. Dayanand Medical College and Hospital and others, (2001) 8 SCC 664 in para 17 and 18 has held as under:-

"17.It is clear that in respect of subjects other than Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine and Social and Preventive Medicine at least 40% of the marks will have to be obtained in order to be eligible for admission and in respect of other subjects there is no such condition at all. In the counter affidavit filed in the High Court, it is stated that the percentage of marks has been reduced below 40% for the basic subjects like anatomy, Physiology and Pharmacology because the candidates of higher merit are not opting for these subjects and as such the postgraduate seats in Departments of Anatomy, Physiology and Pharmacology keep lying vacant and thus leading to an acute shortage of teachers in these Departments. Further, the condition of 50% marks in the entrance test was reduced to 40% because 80% of the seats reserved for PCMS doctors remained unfilled because most of them could not secure 50% marks in PGET due to the fact that they do not get academic support in rural areas. It is submitted that the postgraduate entrance examination is held for those who have already passed in MBBS examination by securing at least 50% marks and, therefore, the candidates who had not secured 50% in the postgraduate entrance examination cannot be declared to be filled in MBBS. The lowering of the marks to less than 50% has the twin objective of safeguarding the interests of weaker sections of the Scheduled Castes and Backward classes and to meet the constitutional obligation. We are afraid, the approach of the State of Punjab in this regard results in stultifying the logic. What is contended is that suitable candidates are to be selected from amongst the eligible candidates and in that regard an entrance test is being held. When such an entrance test is held, a prescription has been made by the Medical Council of India fixing a standard in terms of Entry 66, List I of the Seventh Schedule to the Constitution and which cannot be diluted at all as has been held in a series of decisions including Dr. Preeti Srivastava and another Vs.State of M.P. and others (1999) 7 SCC 120], Dr. Narayan Sharma vs. Dr. Pankaj Kumar Lehkar(2000) 1 SCC 44 and Medical Council of India vs. State of Karnataka (1998) 6 SCC 131. Therefore, it is not open to the University or the Government to dilute that standard by fixing marks lower than what is set out by Medical Council of India. If they had any difficulty they ought to have approached the medical Council of India for fixing of appropriate standards in that regard. The State Government could not unilaterally frame a scheme reducing the standard in violation of the terms of the Regulations framed by the Medical Council of India, which is repeatedly stated by this Court to be repository of the power to prescribe standards in Post Graduate studies subject, of course, to the control of the Central Government as envisaged in the Act constituting the Council.

18.What we have now to see is whether the action taken by the appellants is consistent with the prescription made by the Medical Council of India to the extent of obtaining 50% marks in the entrance examination and on that basis operate their rosters. If they do so and if the candidates, who have secured 50% marks, would be admitted, no interference is called for in the matter. If, however, any of the students has secured less than 50% marks that admission alone will have to be cancelled and appropriate directions issued to select as against it another candidate belonging to the reserved category if there is a reserved category candidate who has secured such marks, and if no reserved category candidate is available, must then be selected from the general category."

Hon'ble the Apex Court in the case of State of M.P. and others Vs. Gopal D. Pirthani, (2003) 7 SCC 83, in para 26 and36 has held as under:-

"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%. The State of Madhya Pradesh must comply with the requirements of the Regulations framed by the Medical Council of India and hold a common entrance test even if there are two separate channels of entry and allow clearance only to such candidates who secure the minimum qualifying marks as prescribed by the MCI Regulations. If the State has a case for making a departure from such rule or for carving out an exception in favour of any classification then it is for the State to represent to the Central Government and/or Medical Council of India and make out a case of justification consistently with the fore-quoted observation of this Court in Dayanand Medical College and Hospital's case (2001) 8 SCC 664.

36. We sum up our conclusions as under:-

1. In the State of Madhya Pradesh allocation of 20% seats in post graduation in the Universities of Madhya Pradesh for in-service candidates is not a reservation; it is a separate and exclusive channel of entry or source of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations. Such two channels of entry or two sources of admission is a valid provision.

2. There can be only one common entrance test for determining eligibility for post graduation. The requirement of minimum qualifying marks cannot be lowered or relaxed contrary to Medical Council of India Regulations framed in this behalf.

3. In the State of Madhya Pradesh there are five universities, i.e. there are universities more than one. Regulation 9(2)(iii) cannot be made use of in the State of Madhya Pradesh either singly or in combination with Clause (i) for determining the eligibility for entrance into PG courses.

4. It is permissible to assign a reasonable weightage for service rendered in rural/tribal areas by in-service candidates for the purpose of determining inter se merit within the class of in-service candidates who have qualified in the Pre-PG test by securing the minimum qualifying marks as prescribed by the Medical Council of India.

5. Women candidates constitute a class by themselves and the provision of relaxed or reduced eligibility criteria by reference to continuous service rendered in rural areas for the purpose of sponsorship by the State Government in specified disciplines which have utility for serving women folk in villages does not suffer from the vice of invidious discrimination."

Hon'ble the Apex Court in the case of Dr. Narayan Sharma and another Vs. Dr. Pankaj Kumar Lakhar and others ( 2000) 1 SCC 44 after considering other ruling on the point in issue has held as under:-

"The following principles emerge from the above rulings:

(a) A provision for reservation must be within reasonable limits.

(b) There can be a reasonable classification based on intelligible differentia for the purpose of Articles 15(1), 15(4), and 29(2)

(c) There can be reservation for persons belonging to areas which are socially and educationally backward.

(d) A rural area is not a class by itself and cannot be considered to be socially and educationally backward merely because it is a rural area.

(e) Admission to post-graduate courses should be strictly based on merit.

(f) The merits of the candidates seeking admission to higher educational courses shall be judged by uniform standard and for that purpose holding an entrance examination is the best method.

(g) There shall be no dilution of standards in higher educational courses and in particular, post-graduate courses."

Thus in view of the said position of law as laid by Hon'ble the Apex Court , it is mandatory on the part of candidate to obtain minimum 50% of marks in the entrance examination which is conducted by appropriate authority in order to get admission in Mch (CTVS) Course as per Medical Council of India Post Graduate Medical Eduction Regulation 2000.

In the present case , petitioner has obtained less than 50% marks ( 35%) in the entrance examination for Mch (CTVS) Course for the session 2014-2015.

Further, so far as the arguments raised by Sri H.G.S. Parihar , learned counsel for the petitioner that prior to passing of impugned orders, no opportunity was given to the petitioner so the same are violative of principle of natural justice.

It is true that all action against the party which invoke penal or adverse consequences must be taken in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle has to be judged into light of the facts and circumstances of each case. If the facts are admitted, undisputed or proved, it is not necessary to issue notice or afford an opportunity of hearing.

In Channabasappa Vs. State of Mysore, AIR 1972 SC 32, a Police Officer remained absent without leave and also resorted to fast as a demonstration against the action of the superior officer. In the departmental inquiry, when the delinquent admitted all the relevant facts, there was no question of giving any opportunity to cross-examine the witnesses.

In S.L. Kapoor Vs. Jagmohan and others (1980) 4 SCC 379, the Supreme Court stated :

"Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the nonobservance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary."

In Suresh Chandra Mehra Vs. Union of India, (1991) 2 SCC 198, in a departmental inquiry, the delinquent officer voluntarily opted to accept the punishment awarded by General Officer Commanding(GOC). He, however, subsequently challenged the said action by filing a petition under Article 32 of the Constitution contending that the provisions of the Army Rules. 1954 were not complied with and the principles of natural justice were not observed by GOC.

Dismissing the petition and negativing the contention of non observance of principle of natural justice, the Supreme Court stated:

"The petitioner voluntarily opted to accept the award and it does not lie in his mouth to complain that no summary trial as provided for in the Army Rules was held nor could such a complaint by him be entertained in a writ petition like this."

As per the facts on record, petitioner has not obtained 50% marks in the Entrance Examination which is conducted by appropriate authority in order to get admission in Mch (CTVS) Course rather he has obtained 35% marks even if any opportunity is given to the petitioner prior to passing of the impugned order, said position cannot be changed as such the arguments advanced by Sri H.G.S. Parihar learned counsel for the petitioner that impugned order has been passed without giving any opportunity to the petitioner, has got no force and there is no illegality or infirmity in the impugned orders under challenge in the present case.

At this stage, Sri H.G.S. Parihar, learned counsel for the petitioner that there is no fault on the part of the petitioner in regard to admission in Mch (CTVS) Course. However, the same has been given by opposite parties and the petitioner has pursued the said course for more than one year so due to in action on the part of opposite parties future career of the petitioner has been ruined as such he may be compensated. However, said relief cannot be granted in the instant matter and if the petitioner so advised, he may approach appropriate forum/ court for the said purpose.

For the foregoing reasons, the writ petition lacks merit and is dismissed.

Order Date :- 9.5.2017

dk/