Veterinary Council Of India vs Indian Council Of Agricultural ...
1996 Latest Caselaw 496 Del

JUDGMENT

Anil Dev Singh, J.

(1) This is an application under Order 39 Rules 1 and 2 seeking to restrain the defendant from holding the All India Entrance Examination in respect of 15% of the total number of seats of each Veterinary college to be filled through common entrance examination. The plaintiff. Veterinary Council of India, claims injunction on the strength of Regulation 5(8) of the Veterinary Council of India - Minimum Standards of Veterinary Education - Degree Course (BV Sc & AH) Regulations, 1993 (for short 'the Regulations') framed under the Indian Veterinary Council Act, 1984 (for short 'the Act').

(2) The plaintiff has been established under section 3 of the Act for the purpose of regulating veterinary practice in the country as delineated in the Preamble thereto, which reads as follows :- "An Act to regulate veterinary practice and to provide, for that purpose, for the establishment of a Veterinary Council of India and State Veterinary Councils and the maintenance of registers of the veterinary practitioners and for matters connected therewith. Whereas it is expedient to make provision for the regulation of veterinary practice and to provide, for that purpose, for the establishment of a Veterinary Council of India and State Veterinary Councils and the maintenance of registers of persons qualified to engage in veterinary practice for the whole of India and for matters connected therewith or ancillary thereto; And Whereas Parliament has no power to make. laws for the States with respect to any of the matters aforesaid except as provided in articles 249 and 250 of the Constitution; And Whereas in pursuance of clause (1) of article 252 of the Cosntitution, resolutions have been passed by all the Houses of the Legislatures of the States of Haryana, Bihar, Orissa, Himachal Pradesh and Rajasthan to the effect that the matters aforesaid should be regulated in those States by Parliament by law; "

(3) As is evident from the Preamble of the Act, the legislation has been enacted by invoking Article 252 of the Constitution as the subject-matter of the Act falls in the State List [Entry (15) of List Ii of the Seventh Schedule to the Constitution] though it also falls in Concurrent List [Entry (25) of List Ii of the Seventh Schedule to the Constitution). In order to arm the Parliament to legislate on the matter, resolution under clause (1) of Article 252 of the Constitution was passed by all the Houses of Legislature of the Stale of Haryana, Bihar, Orissa, Himachal Pradesh and Rajasthan to the effect that the matters underlined in the preamble should be regulated in those Stales by a parliamentary legislation. To achieve the object of the Act, the plaintiff, under section 22 of the Act, has been empowered to specify the minimum standards of veterinary education required for granting recognised veterinary qualification by veterinary institutions in the States to which this Act extends. Section 22 of the Act reads thus :- "22.(1)The Council may, by regulations, specify the minimum standards of veterinary education required for granting recognised veterinary qualifications by veterinary institutions in those States to which this Act extends. (2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to the State Government concerned and the Council shall, before submitting such regulations or any amendments thereof, as the case may be, to the Central Government for approval, take into consideration the comments of the State Government received within three months from the furnishing of the copies as aforesaid. (3) The Central Government may before approving such regulations or any amendments thereof, consult the Indian Council of Agricultural Research. (4) The Committee constituted under section 12 shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit. "

(4) Under section 66 of the Act, the plaintiff is empowered to make regulations to carry out the purposes of Chapters Ii to V of the Act.

(5) The plaintiff in exercise of powers conferred by sub- section (1) of section 22 read with clause (b) of sub-section (1) of section 21 of the Act has framed the Regulations. These regulations were notified on 7th of February, 1994, and published in the Gazette of Government of India on the same day. According to regulation 5(8), 15% of the total number of seals of each veterinary college have been reserved to be filled on all India basis through common entrance examination to be conducted by the Veterinary Council of India. Regulation 5(8) reads as follows :- "15% of the total number of seals of each Veterinary College shall be reserved to be filled on an all India basis through common entrance examination to be conducted by the Veterinary Council of India. "

(6) Pursuant to the aforesaid regulation, the plaintiff conducted an All India Common Entrance Examination for the academic year 1995 and allotted students under this category to the various veterinary colleges in accordance with merit. For the academic year 1996-97 the plaintiff vide notice dated November 25, 1995, invited applications from eligible candidates to participate in the entrance examination to be held on May 26, 1996, for selection of students on all India basis. The plaintiff received about 14000 applications from students all over the country. The defendant - Indian Council of Agricultural Research, by an advertisement inserted in the Employment News dated 2-8 March, 1996, announced that it shall conduct an all India Common Entrance Examination on 8th of June 1996 for filling up 15% of the total number of seals in State Agricultural Universities. For this purpose applications were invited from Indian citizens having passed the Higher Secondary Examination or the Indian School Certificate Examination equivalent to 10+2 Higher Secondary Examination with Physics, Chemistry, Biology, Maths and any other elective subject with English at a level not less than the core Course for English as prescribed by the National Council of Education Research and Training after the introduction of 10+2+3 (years) educational structure. The plaintiff is aggrieved of this action of the defendant.

(7) The stand of the plaintiff is that under the Regulations, which have statutory force, it is the plaintiff which can hold the examination and the defendant has no authority to hold the same. Learned counsel for the plaintiff while reiterating the stand taken in the plaint and in the application, strongly relied on the decisions of the Supreme Court in Dr. Dinesh Kumar and others v. Motilal Nehru Medical College, Allahabad, and others, , and Air 1986 S.C. 1877, and contended that Regulation 5(8) of the Regulations was framed on the basis of the principle laid down in the aforesaid decisions of the Supreme Court which required 15% of the seals in the medical colleges to he filled up by a common entrance examination to be held by the Government of India or the Indian Medical Council. He submitted that the same principle which applies in the case of the medical colleges has been made applicable by regulation 5(8) of the Regulations in the case of veterinary colleges. Learned counsel relied upon the following observations of the Supreme Court in the aforesaid two decisions:- : "The admissions must be based on evaluation of relative merits through an entrance examination which would be open to all candidates throughout the country. Such entrance examination should in our opinion be held by the Government of India or the Indian Medical Council on an all India basis and admissions should be granted to the various medical colleges in the country on the basis of the marks obtained at such entrance examination ...... There can be no constitutional impediment in the way of the Government of India or the Indian Medical Council for holding such entrance examination, because the topic of education is in the Concurrent List. We are of the view that such entrance examination must be held by the Government of India or the Indian Medical Council because then there will be only one examination in which the students seeking admission to the M.B.B.S. course will have to appear, irrespective of the place where or the University or Medical College in which they arc seeking admission is located....It is therefore absolutely essential that there should be only one entrance examination common to all the medical colleges in the country and such entrance examination can be held only by the Government of India or the Indian Medical Council....." Air 1986 S.C. 1877: "We would direct, in accordance with the suggestion made in the scheme by the Government of India, that not less than 15% of the total number of seals in each medical college or institution, without taking into account any reservations validly made, shall be filled on the basis of all India Entrance Examination. "

(8) Mr. P.N. Lekhi, learned senior counsel for the defendant, on the other hand, submitted that the plaintiff has no authority to hold the examination as regulation 5(8) of the Regulations is ultra vires the Act. Elaborating his argument, learned counsel submitted that section 22 of the Act docs not confer any authority on the plaintiff to regulate the admissions of the students to the veterinary colleges/institutions. Learned counsel further submitted that section 66 which confers power on the plaintiff to make regulations also does not vest any authority in the Council for framing regulations with regard to the holding of examination and selection of students to the various veterinary institutions in the couniry. He further canvassed that even otherwise the Regulations were not properly framed as the requirements of section 22(3) of the Act have not been complied with.

(9) I have considered the submissions of learned counsel for the parlies. Before commenting on the submissions of learned counsel for the parlies, it would be appropriate to set out the opening part of the notification dated February 7, 1994, which reads thus :- "In exercise of the powers conferred by sub-section (1) of section 22 read with clause (b) of sub-section (1) of Section 21 of the Indian Veterinary Council Act, 1984, (52 of 1984) the Veterinary Council of India, with the previous approval of the Central Government hereby makes the following regulations, namely:- "

(10) As is apparent from the above, the Regulations have been framed with the previous approval of the Central Government. Therefore, it cannot be argued with any amount of force that the Regulations were not framed in accordance with section 22(3) of the Act which requires the consultation of defendant (Indian Council of Agricultural Research) and the approval of the Central Government. It is noteworthy that the defendant and Tamilnadu Veterinary and Animal Science University jointly sponsored a National Workshop on Veterinary Education which was held at Madras Veterinary College on 6th and 7th February, 1993, in which it was, inter alia, resolved as under :- "AT All India level a common test may be conducted by Veterinary Council of India and certain percent (not more than 10%) - of admission in a College may be made from this list to promote national integration."

(11) This shows that the defendant was very much in picture in the matter of framing of the Regulations for selection of candidates on all India basis. Therefore, there is no merit in the contention of the learned counsel for the defendant that the said Regulation was not framed in accordance with section 22(3) of the Act. In so far as the contention of the learned counsel for the defendant that the Regulation is ultra vires the Act is concerned, the same cannot be permitted to be advanced as no substantive suit or petition has been filed by the defendant challenging the vires of the Regulation. Therefore, the vires of the Regulation not having been properly challenged cannot be made a subject-matter of controversy in the present suit. Thus, we have to proceed on the basis that Regulation 5(8) is valid and binding on the plaintiff as well as on the defendant.

(12) It may be mentioned that the learned counsel for the defendant relied on the decision of the Karnataka High Court in Veterinary Council of India v. State of Kamataka Ilr 1996 Karnataka 67, to urge that regulation 5(8) is ultra vires the Act and has no statutory force. On the other hand, Mr. Puri, learned counsel for the plaintiff, relied upon the decisions of the Patna High Court in Manish Kumar Pandey and others v. State of Bihar and others (C.W.J.C. No. 9643 of 1995, decided on December 18, 1995) and the Kerala High Court in Jothisha B. and others v. The Administrator, Union Territory of Lakshadweep and others (WA No. 129 of 1996, decided on March 19, 1996). It is not necessary to go into these decisions as the question of vires cannot be gone into in the present suit for the reasons indicated above. It may, however, be mentioned that the decision of the Karnataka High Court in Veterinary Council of India v. State of Karnataka (supra) was rendered in a writ petition filed by the Veterinary Council of India, the present plaintiff, and it was not a petition by a party challenging the vires of the Regulations. In that case what had happened was that the Veterinary Council of India, had filed the writ petition seeking quashing of the communication dated September 21, 1995, of the University of Agricultural Sciences, Bangalore, intimating that the three candidates nominated by the former for admission to B.V.Sc. and A.H. Degrees in the latter institution could not be admitted. In that petition the respondent university raised the question that the Council had no statutory authority to regulate the process of admission of students in the veterinary colleges.. The Karnataka High Court held that Regulation 5(8) of the Regulations framed by the Council for regulating admissions on all India basis was merely advisory in nature and did not bind any University or the Veterinary Institution. I regret my inability to subscribe to the view of the Karnataka High Court that the Regulation is advisory in nature. As long as there is no writ petition or suit for striking down Regulation 5(8) of the Regulations, the vires thereof cannot be examined much less declared ultra vires. It must, therefore, be held that the Regulations derives its force and vigour from the statute and is of a binding nature.

(13) Learned counsel for the defendant also submitted that the Minister of Agriculture had authorised the defendant to conduct the combined All India Examination for the year 1996 and not the Veterinary Council of India. In this regard he relied upon office notings dated December 29, 1995 and February 7, 1996. It may be that the Minister had permitted the defendant to hold the combined All India Examination for the year 1996, but the decision or the resolve of the Minister cannot be allowed to take precedence over the statutory Regulations. Regulation 5(8) clearly empowers the plaintiff to conduct combined All India Examination for 15% of the seats in the Veterinary Colleges. As long as regulation 5(8) is a part of the statutory regulations the same must be given effect to. In case the defendant wanted to challenge the vires of the regulation it could have instituted appropriate proceedings. Not having done that the defendant cannot be allowed to urge in the suit filed by the plaintiff that the regulation be declared ultra vires.

(14) Having regard to the aforesaid discussion, I am of the opinion that it is the plaintiff who is empowered to hold the examination on all India basis in respect of 15% of the total number of seats of each Veterinary College in the States to which the Act applies. Accordingly, till further orders the defendant is restrained from conducting All India Common Entrance Examination for filling up 15% of total number of seats in the State Agricultural Universities. I.A. stands disposed of.

(15) A copy of this order may be given to counsel for the parties.