Calcutta High Court (Appellete Side)
Sri Daksh Singhal & Ors vs The State Of West Bengal And Others on 23 June, 2022
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Moushumi Bhattacharya.
WPA 18122 of 2021
Sri Daksh Singhal & Ors.
Vs.
The State of West Bengal and Others
with
WPA 80 of 2022
with
IA No : CAN/1/2022
Supriya Bakshi
Vs.
Union of India & Ors.
For the Petitioner : Mr. Suddhasatva Banerjee, Adv.
in WPA 18122 of 2022 : Mr. Supratic Roy, Adv.
: Mr. Amit Dey, Adv.
For the Petitioner : Mr. Biswaroop Bhattacharyya, Adv.
in WPA 80 of 2022 Mr. Rahul Karmokar, Adv.
Mr. Saptarshi Kumar Mal, Adv.
For the State : Mr. Swapan Kumar Dutta, Adv.
in WPA 18122 of 2022 Mr. Rajat Dutta, Adv.
For the State : Mr. T.M. Siddiqui, Adv.
in WPA 80 of 2022 Mr. Nilotpal Chatterjee, Adv.
2
For Respondent No. 4 : Mr. Soumya Majumdar, Adv.
in WPA 18122 of 2022 Mr. Sumanta Biswas, Adv.
& Respondent No. 7 Mr. D. K. Jain, Adv.
in WPA 80 of 2022 Mr. Bikash Shaw, Adv.
For the Respondent No. 6 : Mr. D.N. Maiti, Adv.
in WPA 80 of 2022
For the Respondent Nos. 5 & 6 : Mr. L.K. Gupta, Adv.
in WPA 18122 of 2021 Mr. Sandip Ghosh, Adv.
& Respondent Nos. Mr. Debayan Ghosh, Adv.
8 and 9 in WPA 80 of 2022 Mr. Asim Kumar Chatterjee, Adv.
For the National Medical : Mr. Indranil Roy, Adv.
Commission. Mr. Sunit Kumar Roy, Adv.
Last Heard on : 20.05.2022.
Judgment on : 23.06.2022.
Moushumi Bhattacharya, J.
1. The issue in the two writ petitions is whether a nomination can be made
by a non-State body for admission to post-graduate medical courses to the
Institute of Post-Graduate Medical Education & Research (IPGEM&R) which is
a Government hospital and medical college in the State of West Bengal. The
petitioners say that the nominations were made dehors The Medical Council of
India Postgraduate Medical Education Regulations, 2000 as amended on
05.04.2018.
2. The petitioners and the private respondents successfully participated in
the NEET-PG, 2021 and underwent the internal examination conducted by the
respondent no. 4 (Rai Bahadur Seth Sukhlal Karnani Chandanmull Karnani
Trust) for being nominated to a post-graduate medical seat in IPGME&R which
is a reputed institution founded by the respondent no. 4 Trust. Private
respondent Nos. 5 and 6 in WPA 18122 of 2021 and the private respondent
nos. 8 and 9 in WPA 80 of 2022 were selected by the respondent no. 4 for
nomination to the post-graduate medical seats in IPGME&R. The petitioners
contend that the private respondents scored lower marks compared to the
petitioners in NEET-PG, 2021 and the nominations were hence contrary to the
MCI Regulations, 2000.
3. The Trust contends that the writ petitions are not maintainable since the
respondent no. 4 is a private Trust. The second argument on maintainability is
that the petitioners cannot challenge the nomination after having participated
in the process.
The maintainability argument
4. In Shri Andi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna
Jayanti Mahotsav Smarak Trust vs V.R. Rudani; (1989) 2 SCC 691 the Supreme
Court expounded the widening contours of the law relating to issue of
mandamus. It was held that the term 'authority' used in Article 226 of the
Constitution must be given a liberal meaning unlike the term in Article 12 and
that 'authority' may cover any person or body performing a public duty. The
Court explained that the duty must be judged in the light of a positive obligation
owed by the person or authority to the affected party and a mandamus cannot
be denied where a positive obligation exists. The widening of the field of Article
226 with reference to the expression 'person or authority' received a similar
meaning in Marwari Balika Vidyalaya vs Asha Srivastava; (2020) 14 SCC 449
where the Supreme Court dealt with the issue whether the service of teachers of
a private school could be terminated without conducting an enquiry. The
Supreme Court held that the writ petition was maintainable since the words
used in Article 226 would not be confined only to statutory authorities and
instrumentalities of the State and may cover any other person or body
performing a public duty.
5. In the present case, in nominating candidates for post-graduate medical
seats in a State-aided college the respondent no. 4 Trust is performing a public
function since the nomination would have a bearing on the dissemination and
quality of medical services which would ultimately be provided by the selected
candidates. The Trust therefore, owes a positive obligation to the affected
party, in this case, the public at large. It may be reiterated that a mandamus
may be issued by the Court when the applicant establishes that he has a legal
right to the performance of a legal duty by the party against whom the
mandamus is sought and that the right claimed was subsisting on the date of
the petition; Ref : State of U.P. vs Harish Chandra; (1996) 9 SCC 309. The writ
petitioners are also aggrieved by the role of the State respondents being the
Department of Health & Family Welfare and the Director of Medical Education,
Government of West Bengal, in accepting the nominations made by the
respondent no. 4 Trust. The cause of action is hence a composite bundle of
facts which further dilutes the maintainability argument.
6. The first objection raised by the respondents is accordingly found to be
untenable.
7. The second contention of the petitioners being estopped by their conduct
as a result of the petitioners participating in the selection procedure conducted
by the Trust is logically unacceptable. The petitioners could not have had any
knowledge about the outcome of the selection process at the time of applying
for the nominations or during the evaluation process. The legality of the
selection process would never be questioned through judicial review if
candidates are denied access to courts on the ground of having participated in
the selection process. Such a view would also disqualify a candidate who has
not participated in the process on the ground of the candidate not having locus
and being an unaffected party. Dr. (Major) Meeta Sahai vs State of Bihar; (2019)
20 SCC 17 dealt with a similar issue where the respondents before the
Supreme Court questioned the maintainability of the appellant's challenge on
the ground that a candidate who had participated in a recruitment process
could afterwards not challenge the correctness of it particularly where the
candidate failed in the selection. The Supreme Court held that in agreeing to
participate in the selection process a candidate only accepts the prescribed
procedure and not the illegality of it. It was also held that a candidate may not
have the locus to assail the derogation of the constitutional safeguards unless
he/she participates in the selection process. The Supreme Court came to a
similar finding in S. Krishna Sradha vs The State of Andhra Pradesh; 2019 SCC
OnLine SC 1609 although on a slightly different factual premise concerning the
cut-off date for admission to the MBBS course.
8. Dhananjay Malik vs State of Uttaranchal; (2008) 4 SCC 171 dealt with a
situation where the writ petitioners unsuccessfully participated in a
recruitment process. The Supreme Court held that since the writ petitioners
had done so without any demur, they were estopped from challenging the
selection criteria of the educational qualification being contrary to the U.P.
Subordinate Educational Service Rules, 1983. In Union of India vs N.Y. Apte;
(1998) 6 SCC 741 the Supreme Court found that the respondents were not
even in the zone of consideration for promotion to the concerned post when
they filed the writ petition before the Delhi High Court. In Madras Institute of
Development Studies vs K. Sivasubramaniyan; (2016) 1 SCC 454 the Supreme
Court relied on G. Sarana vs University of Lucknow; (1976) 3 SCC 585 to hold
that once a candidate voluntarily appears before the concerned selection
committee and takes a chance, the candidate cannot question the constitution
of the committee.
9. None of the aforesaid cases assist the respondents in their plea of
ousting the petitioners' challenge. Since this kind of question often crops up
before a Court, it is important to make a distinction between the cases where
the petitioner participated in a selection process being fully aware either of the
constitution of the selection committee or the evaluation process involved or
the possible outcome of the evaluation and cases where the petitioner was
completely unaware of any of the relevant incidents of the assessment criteria
or the nature of the outcome. It is one thing to say that an unsuccessful
candidate having all the material information at his/her disposal at the
relevant point of time is estopped from mounting a challenge to the selection
process; and quite a different point where the candidate was kept in the dark
on any vital aspect of the evaluation or could not have foreseen the outcome of
the process on the information available to him/her. The present case falls in
the latter category where the petitioners could not have known the criteria for
selection or the applicability of the 2000 MCI Regulations to the evaluation.
10. The court is therefore not inclined to accept the maintainability
argument and holds that the writ petitions are maintainable under Article 226
of the Constitution of India.
The substantive challenge
11. The issue is whether a non-State body can nominate candidates for post-
graduate medical seats to medical courses in a government college dehors the
Medical Council of India Post Graduate Medical Education Regulations, 2000
as amended.
12. The petitioners through their learned counsel, Mr. Suddhasatva
Banerjee and Mr. Biswaroop Bhattacharya urge that the respondent no. 4
Trust could not have nominated the private respondents to the PG medical
seats in IPGME&R.
13. The respondent no. 4, through its learned counsel, Mr. Soumya
Majumdar, relies on at least three precedents on the issue in the form of three
judgments delivered by Single and Division Benches of this Court upholding
the right of the respondent no. 4 Trust to nominate candidates under an
agreement dated 7th July, 1954. The Trust also contends that the nominations
are not contrary to the MCI Regulations of 2000 and traces the amendments of
the Regulations from 2000 to 2018. It is submitted that the MCI Regulations
which came in much later would not have the effect of reversing the three
judgments relied upon. Counsel places a decision of the Supreme Court in
Tamil Nadu Medical Officers Association vs Union of India; (2021) 6 SCC 568 to
submit that a separate source of entry for in-service doctors by way of
executive instructions was upheld by the Supreme Court notwithstanding the
prevailing MCI Regulations.
14. The State respondents, through their learned counsel Mr. Swapan
Kumar Dutta rely on the agreement dated 17th July, 1954 which was executed
between the State of West Bengal and the respondent no. 4 Trust for valuable
consideration. Counsel places Clause 6 of the said agreement under which the
Trust has the power to recommend a student for post-graduate training for
every session if the student is otherwise eligible for such admission. Counsel
submits that the State is hence under a contractual obligation and cannot
resile from the terms of the agreement. Counsel relies on the precedential value
of the judgments of 1984-1992 of the learned Judges. It is also submitted that
the respondent no. 4 has followed the MCI Regulations since the nominations
are made from the State merit list.
15. Mr. L.K. Gupta, learned senior counsel appearing for the private
respondents relies on the agreement executed between the Trust and the State
in the name of the Governor of West Bengal in conformity with Article 166 (2)
of the Constitution of India. Counsel submits that the 2000 Regulations have
undergone several changes from 2008 onwards and that the only requirement
of Regulation 9(4) is for candidates to be admitted to PG Courses from the
merit list which is a departure from the earlier Regulation 9(4) as it stood in
2008 and 2010. Counsel submits that the judgments passed by the learned
Judges of this Court operate as binding precedents.
16. The National Medical Commission (formerly, Medical Council of India) is
represented by learned counsel, Mr. Indranil Roy. The stand taken is that the
nomination by the Trust and the acceptance of it by the State is covered by
Regulation 9(4) of the 2000 Regulations and is a reservation under the
applicable laws. Counsel submits that the nominated candidates are required
to fulfill the eligibility criteria laid down in Regulation 9(3), namely, the
candidates must obtain the minimum marks as applicable in their respective
category in the National Eligibility-cum-Entrance Test for Postgraduate courses
held for the said academic year. Counsel submits that once the candidates
fulfill these conditions, it is not open for the National Medical Commission to
scrutinize the procedure. Counsel urges the Court not to interfere with the
admission process for the academic session 2021 which has already been
completed.
17. The arguments advanced by learned counsel appearing for the parties
will be dealt with in the following sequence:
i) Whether the judgments delivered in 1984-1992 can be treated as binding
precedents.
ii) The MCI Regulations, 2000.
iii) What Regulation 9(4) entails.
iv) The position of the private respondents vis-à-vis the petitioners.
v) Has the Trust conformed with Regulation 9(4) in nominating the private
respondents?
vi) Is the State under an obligation to accept the nominations?
Whether the judgments delivered in 1984-1992 can be treated as binding
precedents
18. The orders/judgments are as follows:
Justice Padma Khastgir passed an order on 19th September, 1984
in Matter No. 1695 of 1983 on an application made by the trustees
of the respondent no. 4 Trust in respect of a refusal by the
Government of West Bengal to induct a nominee of the Trust on
the Board of the SSKM Hospital. The learned Judge issued a
mandamus on the State of West Bengal directing them to act in
accordance with agreement between the Governor of West Bengal
and the trustees of Raibahadur Sukhlal Chandan Mull Karnani
Trust and accept the recommendation of the Trust for admitting
an eligible student to the post-graduate training and research
department of the SSKM Hospital.
Justice Susanta Chatterji passed a judgment dated 25th February,
1991 in Matter No. 5298 of 1989 in a writ petition filed by the
Managing Director of the respondent no. 4 Trust for directing the
respondent authorities to act in accordance with the agreement
dated 17th July, 1954 executed between the Trust and the
Governor of West Bengal. The University of Calcutta was the
answering respondent in the matter. The stand of the University
was that the University was not bound by the terms of the
agreement of 17th July, 1954. The Court upon considering the
agreement executed between the Trust and the State and the effect
given to it by the Trust in terms of donation of Rs. 17 lacs to the
State of West Bengal in 1954, held that the University is bound to
discharge the obligation attached to the terms of the agreement
since it has received the benefit of the same. The Court also held
that the University cannot deny the recommendation made by the
Trust of admitting a candidate to the concerned course. The
respondent University was accordingly directed to act in terms of
the agreement dated 17th July, 1954 and admit students who had
been recommended to the Institute of Post Graduate Medical
Education and Research (IPGME&R).
Justice Ajoy Nath Ray gave a dissenting judgment in the appeal
filed by the University of Calcutta from the judgment dated 25th
February, 1991. In his dissenting judgment, Justice A.N. Ray,
agreed with the view of Justice Susanta Chatterji and held that the
1954 agreement did not contain any illegality. The learned Judge
observed that the donation had been given by the Trust for the
larger benefit of the State and that being a private body, the Trust
is not bound by public law. It was further observed that there was
nothing wrong in a large donation for an educational purpose
where only a small number of seats are reserved and made
possible by the said donation.
[Justice A.M. Bhattacharjee disagreed with the view of Justice A.N.
Ray and held that the names recommended by the Trust under
Clause 6 of the deed of 1954 cannot be admitted unless they are
otherwise found to the eligible in accordance with the relevant
Rules of the University.]
Justice Suhas Chandra Sen agreed with the view of Justice A.N.
Ray in a reference made under Clause 36 of the Letters Patent of
this Court. The learned Judge rejected the stand of the University
in refusing to be bound by the agreement of 17th July 1954 on the
ground that the University is not an autonomous body
independent of the Government and is hence bound to admit any
student to the post-graduate medical course under an agreement
entered into by the Government. The Court observed that the State
as well as the University are jointly trying to circumvent the
agreement entered into by the State with the Karnani Trust and
attempting to frustrate the nominations of two candidates to the
post-graduate medical course. It was further observed that the
University having taken advantage of the facilities created by the
donation of the Trust cannot renege from its obligations created by
the agreement. The Court held that giving the Government of West
Bengal liberty to abandon such an agreement after enjoying the
benefit of the said agreement would be against public policy. The
Court accordingly held in favour of the nominations made by the
Trust of candidates who were otherwise eligible to the medical
course.
19. There are three reasons for holding that the above judgments cannot be
seen as binding precedents, far less as res judicata, in relation to the
obligations of the State to comply with the terms of the agreement executed
between the Trust and the Governor of West Bengal on 17th July, 1954.
20. First, the facts before the Court in Matter No. 5298 of 1989 were
different. The Court was considering whether the Calcutta University could be
directed to accept the recommendations of the Trust in respect of admission of
students to the medical course. The Calcutta University as well as State had
opposed the recommendation made by the Trust and had been united in their
stand of the agreement not being binding on them. Second, the question of
admission of the most meritorious candidates, though briefly considered by
Justice Ajoy Nath Ray in his dissenting judgment, was without the statutory
framework of the Medical Council of India Regulations which came much later
in 2000. Justice Ray's views were largely coloured by the fact that (a) the
donation was given for public benefit; (b) the Trust was a private body and (c)
the State had benefited from the donation made by the Trust. The judgment
also proceeded on the basis that having made the donation, the Trust had a
right to "keep strings attached to the donation".
21. The most important distinguishing factor however remains the Post-
Graduate Medical Education Regulations, 2000 enacted under sections 20 and
33 of the Indian Medical Council Act, 1956 which brought in a wholly different
and self-contained scheme for post-graduate medical education and its related
aspects. Whether the 2000 Regulations would have a bearing on the 1954
agreement will be considered later in this judgment. The fact however of the
three decisions of 1984-1992 being prior to the Regulations in point of time
changes the contours of consideration altogether and dilutes the impact of the
decisions.
22. Sahu Madho Das vs Pandit Mukand Ram; AIR 1955 SC 481, relied on by
the private respondents, proceeded on the peculiar facts of the case where the
Supreme Court held that even though Mukand Ram was not a party to the
particular litigation and the decision therefore did not bind him, the decision
operated as a judicial precedent on the construction of the concerned
document; namely a Will of 1864.
23. As stated above, the facts in the present case are quite different and even
though the State and the respondent no. 4 Trust were parties to the earlier
litigation, they cannot claim the judgments rendered therein to be binding
precedents when they were delivered before governing Regulations were
brought into effect in 2000. The argument of the respondent no. 4 and the
private respondents are hence rejected on this score.
The Post-graduate Medical Education Regulations, 2000, as amended from
2008-2018.
24. Regulation 9 which deals with the procedure for selection of candidates
for post-graduate courses is the relevant Regulation for the present writ
petition.
On 22nd August, 2000, when the Regulations were notified, Regulation 9(1)
read as follows.
"Students for Postgraduate medical courses shall be selected STRICTLY ON
THE BASIS OF THEIR ACADEMIC MERIT."
Regulation 9(1)(a) was substituted in terms of a Notification published on
20th October, 2008 and became as follows.
"Students for Postgraduate medical courses shall be selected STRICTLY
ON THE BASIS OF THEIR INTER-SE ACADEMIC MERIT"
Clause 9 was again substituted by a Notification dated 21st December,
2010 and became as follows,
"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 Post-graduate courses from the said merit lists only.
........."
The above Notification was quashed by the Supreme Court on 18th July,
2013 and was revived on 11th April, 2016 by the Supreme Court in a review
of the decision in Medical Council of India vs Christian Medical College,
Vellore; (2016) 4 SCC 342.
Regulation 9(1) to (11) was substituted on 5th April, 2014 as follows. The
relevant part i.e. 9(4) is set out.
"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 Post-
graduate Courses from the said merit lists only."
The most recent change to Regulation 9 was in terms of a Notification
published on 5th April, 2018. The relevant part of 9(4) is set out.
"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
Post-graduate courses from the said merit lists only."
This is the present form of Regulation 9(4) of the 2000 Regulations.
"(4) 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
Post-graduate 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 upto 10% of the marks
obtained for each year of service in remote and/or difficult areas or Rural
areas upto maximum of 30% of the marks obtained in National Eligibility-
cum-Entrance Test. The remote and/or difficult areas or Rural areas shall
be as notified by State Government/Competent authority from time to time."
25. The changes, pointed out on behalf of the Trust and the private
respondents is that the requirement of students being selected "strictly on the
basis of their academic merit" (2000) → "strictly on the basis of their inter se
academic merit" (2008) → "shall be admitted to Post-graduate courses from the
said merit lists only" means that the only requirement which the Trust must
satisfy is selecting candidates from the merit list. In other words, the
respondents construe the changes to mean that the only requirement is to
select candidates from the merit list of the NEET-PG test. There is hence no
requirement of selecting candidates on the basis of their inter se academic
merit. The respondents hence contend that candidates need not be selected in
accordance with their position in the merit list and that the Trust is under no
obligation to respect their inter se academic position as reflected in the list.
26. This Court is unable to accept the construction of Regulation 9(4) as
sought to be given by the Trust and the private respondents,
What Regulation 9(4) of the 2000 Regulations presently entails
27. The relevant clauses of Regulation 9, as of today, are as follows,
"9. Procedure for selection of candidate for Post-graduate courses shall be as
follows. (1) There shall be a uniform entrance examination to all medical
educational institutions at the Post-graduate level namely "National
Eligibility-cum-Entrance Test" for admission to post-graduate courses in
each academic year and shall be conducted under the overall supervision of
the Ministry of Health & Family Welfare, Government of India.
...............
(3) In order to be eligible for admission to Post-graduate Course for an
academic year, it shall be necessary for a candidate to obtain minimum of
marks at 50th percentile in the "National Eligibility-Cum-Entrance Test for
Post-graduate courses" held for the said academic year. However, in respect
of candidates belonging to Scheduled Castes, Scheduled Tribes, and Other
Backward Classes, the minimum marks shall be at 40th percentile. In
respect of candidates with benchmark disabilities specified under the
Rights of Persons with Disabilities Act, 2016, the minimum marks shall be
at 45th percentile for General Category and 40th percentile for SC/ST/OBC.
The percentile shall be determined on the basis of highest marks secured in
the All India Common merit list in National Eligibility-cum-Entrance Test for
Post-graduate courses.
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 its 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
academic year only."
28. The contentious issue revolves around Regulation 9(4), which is set out
once again along with the proviso for ease of reference.
"9. (4) 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
Post-graduate 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 upto 10% of the marks
obtained for each year of service in remote and/or difficult areas or Rural
areas upto maximum of 30% of the marks obtained in National Eligibility-
cum-Entrance Test. The remote and/or difficult areas or Rural areas shall
be as notified by State Government/Competent authority from time to time."
29. A plain and literal construction of the provision is that an all India and a
State-wise merit list of eligible candidates will be prepared according to the
marks obtained in NEET-PG which would in turn determine the priority of
admission of the candidates to the PG courses.
30. NEET-PG is an eligibility-cum-written examination prescribed as the
single entrance examination for admission to MD/MS and PG Diploma Courses
under section 61(2) of the National Medical Commission Act, 2019 read with
section 10D of the Indian Medical Council Act, 1956 (as inserted with effect
from 24th May, 2016).
31. A merit list can only mean one thing; that candidates are ranked in order
of the marks obtained by them. Unless the merit list is prepared in a reverse
order, i.e., the candidate with the lowest mark being placed on top, a logical
(and the only) interpretation of the requirement of 9(4) is that candidates would
be admitted to the PG courses in sequential order from the top of the merit list.
Simply put, the candidate who is placed in the 1st position in the merit list
would have the 1st shot at admission, followed by the 2nd and then the 3rd and
so on and so forth.
32. The words in 9(4) ".....merit list of the eligible candidates shall be
prepared on the basis of the marks obtained in National Eligibility-cum-Entrance
Test....." should be read in tandem with the concluding part of the phrase "....
and candidates shall be admitted to Post-graduate courses from the said merit
lists only" . Read together, the mandate would be to admit candidates in the
order of merit. Regulation 9(4) cannot be interpreted in any other way.
33. The proviso to Regulation 9(4) allows for weightage to be given to
candidates in the form of an incentive for service rendered in remote, difficult
or rural areas; the last two being subject to notifications of the State
Government/competent authority as may be issued from time to time.
34. 9(4) has also to be read with 9(1) which calls for a uniform entrance
examination to all medical educational institutions at the Post-graduate level
for admission to Post-graduate courses in each academic year. The uniformity
of the evaluation-system is reinforced by designating the authority, namely, the
Ministry of Health and Family Welfare, Government of India, for overall
supervision of the procedure. The Information Bulletin of NEET-PG records
that no other entrance examination either at the State or the institutional level
shall be valid for admission or entry to the said courses. The preamble to the
Post-Graduate Medical Education Regulations, 2000 as amended further
states, inter alia, that the National Eligibility-cum-Entrance Test is the uniform
entrance examination to all medical educational institutions at the post-graduate
level and shall continue to be the uniform entrance examination to all medical
educational institutions at the post-graduate level.
35. The above makes it clear that the NEET-PG examination is the only
prescribed entrance test for admission to Post-graduate medical courses.
Regulation 9 including clause (4) thereof bolsters the uniformity and
exclusivity of the entrance test by requiring admission to be made only on the
basis of the order of merit of the candidates. The reliance placed by the
respondents on the transformed 9(4) does not give any clarity on the intention
of the legislation. The progression from "strictly on the basis of their academic
merit" → "strictly on the basis of their inter se academic merit" → "from the
said merit list only" does not mean that the rank of the candidates can be
given a go-by. Indeed, if candidates are selected for admission in a random
order without due regard to their position and rank, the entire objective of The
Indian Medical Council Act, as amended and the Post-graduate Medical
Education Regulations, 2000 would be rendered meaningless.
36. This Court is therefore unable to accept that the only condition which
the Trust was required to fulfill was selecting candidates from the merit list or
that such selection could be made by way of a parallel assessment without due
regard to the rank obtained by the candidates. Admittedly, the Trust conducts
a separate process of assessment for selecting candidates for admission to the
PG Medical Courses. The selection process involves a test after which the
selected candidates are recommended by the Trust to the concerned college
authority for admission. The affidavit of the State respondents in paragraph 7
specifically states that the Trust recommends candidates on the basis of its
own selection test which has no relation with the NEET-PG ranking. This
assertion further persuades the Court to hold that the Trust has acted in
violation of the 1956 Act and the 2000 Regulations in conducting an exclusive
and a parallel selection process for admission to PG Medical Courses outside
the statutory framework of the Indian Medical Council Act and the
Regulations.
The position of the private respondents vis-a-vis the petitioners in the NEET-
PG test
37. The petitioners and the private respondent nos. 5 and 6 in WPA 18122 of
2021 and private respondent nos. 8 and 9 in WPA 80 of 2022 have successfully
participated in the NEET-PG - 2021. The rank of the parties are as follows.
Supriya Bakshi - Rank 58471 - Score 363
(Petitioner in WPA 80 of 2022)
Daksh Singhal - Rank 60748 - Score 357
(Petitioner no.1 in WPA 18122 of 2021
Parna Chakraborty - Rank 67453 - Score 340
(Petitioner no.3 in WPA 18122 of 2021)
Nikhil S. Kumar - Rank 99703 - Score 265
(Petitioner No. 2 in WPA 18122 of 2021)
......................................................................................................
Moinak Chakraborty - Rank 82423 - Score 304
(Respondent No.5 in WPA 18122 of 2021)
Sonia Ghosh - Rank 85417 - Score 297
(Respondent No.6 in WPA 18122 of 2021)
38. The above position is undisputed and would also appear from the
pleadings before the Court.
Has the Trust conformed to Regulation 9(4) in nominating the private
respondents?
39. The Agreement executed between the Trust and the Governor of West
Bengal on 17th July, 1954 entitles the Trust to nominate two candidates for
Post-graduate Medical Course in IPGME&R "if otherwise eligible for such
admission" (Clause 6 of the Agreement). The twin determinants for admission
of a candidate to the PG course are that the candidate must qualify in the
NEET-PG Examination and that the admission to medical courses must be in
accordance with the merit list. The Trust has admittedly recommended the
private respondents for admission to medical course despite the private
respondents being placed lower in the order of merit compared to the
petitioners in the NEET-PG Examination. In discounting the positions obtained
by the petitioners in the NEET-PG Examination, the Trust has failed to
conform with Regulation 9 including Clause (4) thereunder of the 2000
Regulations.
40. The Trust has also violated the single-point entry to admission to PG
courses and the single-umbrella supervision to the process of admission
mandated under the Regulations. The Trust, in fact, has created a separate
channel of entry to admission to PG courses guided by selection criteria which
are exclusive to the Trust and without the sanction of the supervising authority
under Regulation 9. The Trust acknowledges that the dissemination of
information of the selection test conducted by the Trust is but to a limited few;
the mode of dissemination is erratic and benefits only those who chance upon
the advertisement or get to know of such through word of mouth.
41. There is hence a built-in unfairness in the whole process. While the PG
medical seats are a limited few in number, the aspirants to these seats are in
lakhs. The information of the nomination by the Trust is fortuitous and the
selection criteria unknown and un-published. It hence raises a presumption
that the Trust is controlling a separate entry under its own particular
evaluation mechanism leaving out those who remain unaware of the
nominations which may also include those who performed better in the NEET-
PG than the candidates nominated by the Trust. The Trust hence renders itself
vulnerable and subject to judicial scrutiny on all scores. The conclusion is that
the nominations made by the Trust are in violation of the 2000 Regulations.
Is the State under an obligation to accept the nominations made by the Trust?
42. The State accepted a donation of Rs.17 lakhs from the Trust under the
terms of the Agreement dated 17th July, 1954, in exchange of several returned
promises. The State continues to accept the recommendations made by the
Trust for admission to the PG Medical courses in the IPGME&R. The State
argues that it has a continuing contractual obligation to fulfill in return of the
donation of Rs. 17 lakhs which was accepted by the State in 1954. The
question is not whether the 17 lakhs in 1954 would translate to Rs. 340 lakhs
in 2021 if interest is compounded at 4.5% p.a.; the question is whether the
State can allow nominations made in contradiction of an existing statutory
regime and act in terms of such nominations. This Court is of the view that the
State cannot.
43. The State is fully aware of the statutory regime which is prevailing since
1956, as amended in 2016 and lent muscle by an enactment of the
Regulations in 2000. The State is also aware that the nominations have not
been sanctioned or recognised within the framework of the 2000 Regulations or
by the Courts after 2000 Regulations came into force. The State cannot
therefore hold on to its promise in the garb of a contractual obligation when
the fulfillment of such obligation is dehors the existing statutory framework.
The acceptance of the nominations by the State is hence contrary to law and
cannot be accorded judicial sanction in any form.
44. In Sudhir N. vs State of Kerala; (2015) 6 SCC 685 the Supreme Court
held that Regulation 9 is a complete code and further that merit should be the
sole basis of admission for candidates belonging to any given category. The
Supreme Court was of the view that inter se merit cannot be overlooked to
promote seniority which has no place in the scheme of the MCI Regulations.
Although, Sudhir N. referred to Regulation 9 containing the "inter se academic
merit" condition was also partly overruled in The Tamil Nadu Medical Officers
case, the Supreme Court clarified in paragraph 21 of Tamil Nadu Medical
Officers that Regulation 9 may not be construed with respect to providing
reservation for a separate source of entry for in-service candidates within the
State quota. The Supreme Court in Tamil Nadu Medical Officers case however
did not disturb the primacy given to merit in Sudhir N. 1988 (Supp) SCC 30
(Bhagat Ram Sharma vs Union of India) was cited to explain the effect of
amendment to an existing statute. The effect is of repeal of the existing
provision where the earlier provision is deleted and completely replaced with
the amended provision. This decision was cited with regard to the 2014/2018
amendment to Regulation 9 of the 2000 Regulations and the substitution of
the expression "academic merit" and "inter se merit" with "from the merit list
only". Since it has already been held that the 2014/2018 amendments would
not come to the aid of the respondents in discounting the order of merit, this
decision does not assist the respondents.
45. M/s Burrakur Coal Co. Ltd. vs Union of India ; AIR 1961 SC 954 is for the
proposition that the Preamble of an Act may be looked into for understanding
the import of the various clauses contained in the Act and must be disregarded
where the language of the Act is clear. Since this Court has construed
Regulation 9 as it stands today with reference to its earlier avatar, the
Preamble of the Indian Medical Council Act as amended or the National
Medical Commission Act, 2019 has not been taken as the sole guiding factor of
this decision.
Would Tamil Nadu Medical Officers Association vs Union of India; (2021) 6 SCC
568, have a bearing on the nominations made by the Trust?
46. The Trust has sought to rely on the above decision to urge that
"reservation" as a separate source of entry can be provided by the State
through executive instructions. The Trust has also argued that the bar under
MCI Regulations has to be expressed and that once a minimum entry standard
has been achieved under Regulation 9, the State can provide independent
channel of entry by making a variation to the merit list.
47. On a careful consideration of the Tamil Nadu Medical Officers case, it is
found that the issues involved in the said decision pertains to the power of the
State to legislate and frame a law in respect of in-service candidates under the
proviso to Regulation 9(4). This would be evident from paragraph 9.3 of the
report which sets out the issues for consideration and include whether the
State is denuded of its power to legislate on the manner and method of the
postgraduate medical courses, more particularly, in relation to special
provisions for in-service candidates in the postgraduate degree/diploma
courses.
48. The scope of the present writ petitions is wholly different from the issues
before the Supreme Court in Tamil Nadu Medical Officers. First, the question is
not of in-service candidates or whether the State can make a legislation for
variation of the merit list under the proviso to Regulation 9. Second, a separate
channel of admission which the Trust seeks to create has not been given any
recognition by the State in the form of a law or otherwise. The State has also
not sought to exercise any power under List III of the Seventh Schedule of the
Constitution of India for framing a law in respect of the nominations made by
the Trust. The argument of the Trust being a private trust, which has been
discussed and rejected above, would also be inconsistent with the argument of
applicability of this decision to the present case.
49. Paragraphs 11.4 and 12 of Tamil Nadu Medical Officers further makes it
clear that the scope of inquiry was also whether the MCI is conferred with any
authority to frame regulations with respect to reservation in medical courses
for providing a separate source of entry for in-service candidates seeking
admission to Post-graduate degree courses. Regulation 9 of the MCI
Regulations, 2000 was considered only for this aspect. The Supreme Court
held that Regulation 9 does not deal with provisions for reservation or effect
the legislative competence of the States to make reservation for providing a
separate source of entry for in-service candidates for admission to Post-
graduate degree courses. In essence, the whole issue before the Supreme Court
was to do with in-service candidates, namely, those candidates in the States of
West Bengal and Tamil Nadu who were already serving as medical officers in
State-run establishments and were seeking admission to Post-graduate degree
courses. The decision deals with the competence of the State to frame
notifications for giving additional weightage in the form of incentives to medical
officers who had served in areas which could be considered to be rural, difficult
or remote. The in-service candidates were hence within the umbrella and
control of the State which is a fact wholly distinct from the facts before this
court. Tamil Nadu Medical Officers hence does not have any relevance to the
present matter.
50. In conclusion therefore, the only consideration for selection of candidates
for admission to Post-graduate medical courses within the statutory framework
as it exists today is,
"Merit and merit alone"
51. The Indian Medical Council Act, 1956 as amended and the Post-graduate
Medical Education Regulations, 2000, particularly Regulation 9 thereunder,
not only reinforce a unitary and single-point entry for admission to PG medical
courses by way of a common eligibility test, but also that the order of merit
cannot be tinkered with. The scope of the proviso to Regulation 9(4) was
considered in detail in Tamil Nadu Medical Officers and was limited to the State
not being denuded of its power to legislate on special provisions for in-service
candidates in PG Medical Courses. The present case is wholly different since it
concerns the authority of a Trust to nominate candidates for admission to PG
Courses in IPGME&R ignoring the rank and position of the candidates in the
NEET-PG Test.
52. Even if this Court disregards the suggestion made on behalf of the
petitioners of the Trust taking recourse to extraneous considerations in the
selection of candidates including of accepting undisclosed sums of money from
the candidates for admission, the method of assessment used by the Trust
remains shrouded in secrecy. In Christian Medical College, Vellore Association
vs Union of India; (2020) 8 SCC 705 a 3-judge bench of the Supreme Court had
cautioned against individual examinations conducted by institutions and
further observed that the system is riddled with unscrupulous elements
encouraging dubious means to be adopted to defeat merit. The need for a
centralized examination was reiterated by the Supreme Court in Yatinkumar
Jasubhai Patel vs State of Gujarat; (2019) 10 SCC 1.
53. There is no intelligible benchmark disclosed by the Trust as to the
reason why the private respondents were recommended for admission despite
having lower ranks compared to the petitioners in the NEET - PG Test. The
assessment hence is a parallel selection process outside the recommended
statutory framework and is subversive of the Act and the Regulations. The
Trust has not only turned a blind eye to merit but has doffed its hat to the
dilution of merit. The State is hence precluded by law to accept the
recommendations.
54. Any exclusive selection of candidates which is unmonitored within the
recommended guidelines would have particularly dangerous ramifications
when the selection pertains to doctors and medical officers. A statutory
framework is devised in such cases only to safeguard the transparency of the
selection process and to prevent random picking of candidates through parallel
channels without due regard to the merit position of the unified examination
test. Candidates who are placed higher in rank would naturally have a
legitimate expectation to be recommended for the medical courses in the order
of priority. The need to preserve merit at the superspeciality level was
recognized by the Supreme Court in Faculty Association of All India Institute of
Medical Sciences vs Union of India; (2013) 11 SCC 246 where relying upon the
decision of a 9-Judgde bench of the Supreme Court in Indra Sawhney vs.
Union of India; 1992 Supp (3) SCC 215 it was held that there could be no
compromise with merit at the superspeciality stage (also ref : Jagdish Saran vs.
Union of India: (1980) 2 SCC 768, Pradeep Jain vs. Union of India; (1984) 3 SCC
654 and Preeti Srivastava vs. State of M.P.; (1999) 7 SCC 120). The grievance
finds basis in the Acts and Regulations and this court is in agreement with the
justifiability of the complaint.
55. A distinction should be made between the facts of this case and awards
and scholarships given by private bodies, some of which are globally
recognised. These instances of private rewards/sponsorship are not governed
by a unitary statutory framework regulating the selection and admission of the
candidates. These are essentially private grants for sponsoring the particular
course, that is, the private body is itself the sponsorer. Not only is the present
case concerned with a statute governing the admission of candidates to
medical courses without any deviation from the same being permitted, the
Trust's obligations ends with the recommendations. It is the State which
bankrolls the recommended candidates. The burden is ultimately hence on the
public who are ironically put at the receiving end of sponsoring future-doctors
without knowing whether they are the best of the pick.
56. WPA 18122 of 2021 and WPA 80 of 2022 are hence allowed. The
nominations made by the respondent no. 4 in WPA 18122 of 2021 being the
Managing Trustee of the Rai Bahadur Seth Sukhlal Chandanmull Karnani
Trust for admission of the private respondents to the medical courses in
IPGME&R are set aside. The State respondents are restrained from giving effect
to such nominations which are subject matter of the present writ petition
under the donor quota at IPGME&R. If the nominations have already been
acted upon, the State respondents are directed to take appropriate steps for
reversing the effect of the nominations. Since this Court has not accepted the
separate entry created by the Trust, the prayer of the petitioners for admission
to the courses is declined.
57. CAN 1 of 2022 filed in WPA 80 of 2022 for cancelling the nominations of
the private respondent no. 8 is not being gone into by reason of the decision in
the two writ petitions.
58. The writ petitions are accordingly disposed of in terms of the above.
59. The respondent no. 4 Trust and the private respondents pray for stay of
the operation of this judgment. Considering the law on the subject and the
ramifications of the dispute brought before the Court, such prayer is
considered and refused.
Urgent Photostat certified copies of this judgment, if applied for, be
supplied to the respective parties upon fulfillment of requisite formalities.
(Moushumi Bhattacharya, J.)
