Dr.Jayanth V.Kumar v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27-1-2012CORAM: THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMARWrit Petition No.25510 of 2011M.P.Nos.1, 2 of 2011Dr.Jayanth V.Kumar . . Petitionervs.1.State of Tamil Nadu,rep.by Secretary to Government,Health and Family Welfare Department,Fort St.George,Chennai - 600 009.2.THe Director of Medical Education,No.162, Periyar EVR High Road,Kilpauk,Chennai - 600 010.3.The Secretary,Selection Committee,Directorate of Medical Education,No.162, Periyar EVR High Road,Kilpauk,Chennai - 600 010.4.The Secretary,Medical Council of India,Pocket 14, Sector 8,Dwaraka,New Delhi - 110 077. . . RespondentsPrayer:This Writ Petition is filed under Article 226 of theConstitution of India, praying this Court to issue a writ ofCertiorarified Mandamus calling for the records relating to theMedical Council of India Post Graduate Medical Education Regulations,2000 (amended upto December, 2010) insofar as Clause 9(2) isconcerned and consequential Clause 46(a) of the Prospectus issued bythe third respondent and quash the same and further direct therespondents to consider the admission of the petitioner Entrance ExamNo.41024 in M.Ch (Vascular Surgery) in the vacant seat now availableaccording to the merits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.N.R.Chandran, Senior Counsel for Mr.K.J.ParthasarathyFor Respondents 1 to 3: Mr.A.Navaneethakrishnan, Advocate General, assisted by Mr.P.Sanjay Gandhi, Additional Government PleaderFor 4th Respondent: Mr.V.P.RamanO R D E RThe prayer in the writ petition is to quash the MedicalCouncil of India Post Graduate Medical Education Regulations, 2000(Amended upto December, 2010) insofar as Clause 9(2) is concerned andthe consequential Clause 46(a) of the Prospectus issued by theSecretary, Selection Committee and direct the respondents to considerthe admission of the petitioner bearing entrance examination No.41024in M.Ch (Vascular Surgery) in the vacant seat, now availableaccording to the merits.2.During the course of the arguments the learned SeniorCounsel appearing for the petitioner submitted that he is notpressing the prayer as such and the petitioner is restricting theprayer to quash Clause 46(a) of the prospectus issued by theSecretary, Selection Committee, Directorate of Medical Education anddirect the respondents to consider admission of the petitionerbearing entrance examination No.41024 in M.Ch (Vascular Surgery). Amemo is also filed on behalf of the petitioner on 10.11.2011. Thesaid submission made by the learned Senior Counsel for the petitionerfollowed by the memo dated 10.11.2011 is recorded and this writpetition is disposed of based on the above said submission of thelearned Senior Counsel for the petitioner and the memo filed.3.The case of the petitioner is that he passed M.B.B.Sdegree in the year 2006 and post graduation in General Surgery (MS)in April, 2011. He applied for Super Speciality Course (M.Ch) andappeared for the entrance examination conducted by the thirdrespondent for selection in May, 2011 with registration No.41024.Petitioner had opted for one of the two courses (i) Vascular Surgery,and (ii) Cardio Thoracic Surgery. Number of seats available forVascular Surgery was 4 and for Cardio Thoracic Surgery was 16.Petitioner appeared for the entrance examination conducted on26.6.2011 and the results were declared by the third respondent inJuly, 2011. He secured 48.75 marks in Vascular Surgery and 33.75marks in Cardio Thoracic Surgery out of 90 marks. The counsellingfor Super Speciality courses commenced in August, 2011 and the same https://hcservices.ecourts.gov.in/hcservices/ was completed on 21.9.2011. As per the prospectus 50% of the seatsare to be filled up as open category and remaining 50% are to befilled up as service category. The open merit list would be preparedby computing the entrance examination marks and experience marks,which will be calculated to a maximum of 100 i.e, 90 marks forentrance examination and 10 marks (maximum) for experience (one markfor each year). Clause 46(a) of the Prospectus states thatcandidates securing less than 50% of the total marks in othercommunities and 40% of the total marks in reserved communities (BC,BCM, MBC, SC, SCA and ST) will not be considered for counselling(Total marks 100 = Entrance exam 90 + experience marks 10).4.For filling up four seats in Vascular Surgery (M.Ch) -Super Speciality course, general merit list was drawn. According tothe petitioner, candidates who had secured lesser marks than thepetitioner were included, but petitioner's name was not included forcounselling on the ground that he had obtained less than 50% of marksin the entrance examination. Therefore, petitioner has challengedClause 46(a) of the Prospectus issued for admission to SuperSpeciality Course 2011-2012, which is put against the petitioner. Itis the contention of the petitioner that out of four seats availablein M.Ch (Vascular Surgery), only three seats are filled up and oneseat remains vacant on the ground that no candidate having 50% ormore marks, is available. The said clause in the prospectus ischallenged in this writ petition.5.The grounds raised in the writ petition are thatClause 46(a) of the Prospectus is contrary to the MCI Post GraduateMedical Education Regulations, 2000 (amended upto December, 2010);that when seats are available, keeping the seat as vacant merelybecause the candidate has not secured any mark under the category ofmarks allotted to experience i.e, one mark for one year to themaximum of 10 marks, is not in connection with merit; that theeligibility fixed by the MCI being 50% of the entrance mark, theState Government cannot add ten marks for experience and fixingminimum eligibility as 50 marks out of 100 is in violation of the MCIRegulations; that the petitioner having secured 48.75 marks out of 90in the entrance examination, he is fully eligible as he is havingmore than 50% of the marks in the entrance examination; that thepetitioner having not obtained any mark under the category ofexperience, he cannot be denied seat in M.Ch course in spite of non-availability of candidate having higher marks; that denial of seat tothe petitioner in spite of he satisfying the MCI Regulation isdiscriminatory, arbitrary and violative of Article 14 and 15 of theConstitution of India; and that, the petitioner cannot be denied hisright to challenge the clause in the prospectus merely because he hasappeared and taken part in the selection process on the ground ofDoctrine of Acquiescence. Petitioner has placed reliance on certaindecisions of the Honourable Supreme Court. https://hcservices.ecourts.gov.in/hcservices/

6.Respondents 1 to 3 have filed counter affidavit andopposed the prayer, mainly on the ground of estoppel. It is alsostated in the counter affidavit that the respondents are followingMCI norms for selection and the petitioner having participated in theselection process, now he is not entitled to challenge the clause inthe prospectus and the eligibility for admission having been fixed as50% of the total marks i.e, 90 + 10 and the same being uniformlyfollowed, the writ petition is not maintainable even though one seatis vacant due to non-availability of eligible candidates. The cut-off date for admission for Super Speciality Courses having been overas early as on 30.9.2011, the writ petition filed after the cut-offdate seeking admission for the year 2011-2012 is not maintainable.7.An additional counter affidavit was also filed byrespondents 1 to 3 contending that the experience for a professionalDoctor is deciding the merit of a candidate and the same cannot betreated as diluting the merit of the candidate. It is also stated inthe additional counter affidavit that the Honourable Supreme Courthas upheld the reservation of seats in favour of the servicecandidates and therefore awarding one mark for one year experienceand fixing 50% of the total marks of 100 is reasonable and there isno arbitrariness.8.The 4th respondent MCI has filed separate counteraffidavit and in the said counter affidavit the notificationpublished in the Gazette of India on 20.10.2008 viz., Clause (2) ofRegulation 9 relating to selection of PG students is relied on andstated that wherever entrance test for PG admission is held by aState Government or University or any other authorised examiningbody, the minimum percentage of marks for eligibility for admissionto PG medical course shall be 50% for general category candidate and40% for the candidates belonging to SC, ST and OBC candidates. Inparagraph 8 of the counter affidavit it is further stated that aperusal of the above regulation leaves no doubt that the admissionhas to be made on the basis of the academic merit determined on thebasis of "competitive test". The marks provided on the basis ofexperience cannot be part of the competitive test. Hence thepetitioner has met the eligibility norms laid down in the regulationof MCI. It is further stated in paragraph 9 that the regulations ofthe MCI are mandatory, binding and overrides all other regulations,Act or circular, etc., framed by the State Government/University,which is a settled law declared in number of judgments of theHonourable Supreme Court. In paragraph 10 it is reiterated that asper MCI Regulations, minimum requirement to qualify for the entranceexamination for general category candidates stands at a cut-offrequirement of 50% of the marks obtained in the competitive test.9.Mr.N.R.Chandran, learned Senior Counsel appearing onbehalf of the petitioner submitted that the petitioner havingsatisfied the eligibility norms as fixed by MCI by securing 48.75 outof 90 marks, which is more than 50% of entrance/competitive test, he https://hcservices.ecourts.gov.in/hcservices/ is qualified for admission and adding ten marks towards experienceand fixing 50 marks for 100 marks as has been done by the thirdrespondent, is contrary to the MCI regulations. The petitionerhaving been found eligible as per MCI norms, he is entitled to getadmission in M.Ch course either in the academic year 2011-2012 or hemay be directed to be admitted during the next academic year 2012-2013. The learned Senior Counsel relied on the judgments for theproposition that for admissions, MCI regulations alone will governand any regulation issued which is repugnant to the MCI regulationsis to be declared as invalid. The learned Senior Counsel also citedfew decisions in support of his contentions.10.Mr.V.P.Raman, learned counsel appearing for theMedical Council of India submitted that the petitioner is satisfyingthe eligibility criteria fixed by the MCI as he has secured 48.75marks out of 90 marks in the entrance examination. However, thepetitioner is not entitled to get admission for the academic year2011-2012 as the last date for admission fixed by MCI was over asearly as on 30.9.2011. The learned counsel also submitted that theHonourable Supreme Court has fixed the cut-off date for admission tomedical graduation as wall as PG degrees including Super Specialitycourses and if any direction is issued to give admission for 2011-2012, now the same will be contrary to the decisions of the SupremeCourt.11.Mr.A.Navaneetha Krishnan, learned Advocate General onthe basis of the counter affidavit and additional counter affidavitfiled by respondents 1 to 3 submitted that the petitioner has securedonly 48.75 marks out of 100 marks (i.e., '48.75' marks in entranceexamination + '0' marks for experience). The minimum marksprescribed as per the prospectus being 50% of total 100 marks,petitioner is not eligible to be admitted as he is ineligible as perclause 46(a) of the Prospectus. The learned Advocate General alsosubmitted that even assuming that MCI norms fixes 50% of the 90marks, i.e., for competitive examination/entrance examination, theState Government can fix higher norms for admission and the saidpower of the State Government is upheld by the Honourable SupremeCourt. The learned Advocate General also submitted that thepetitioner having approached the Court after the cut-off date foradmission i.e, after 30.9.2011, he is not entitled to get admissionfor the academic year 2011-2012 and as the admission to 2012-2013will be on different entrance test as well as assessment of marks onthe basis of experience, seeking direction to the respondents toadmit the petitioner in the academic year 2012-2013 based on thepresent marks secured by the petitioner will affect the rights ofother students, who would be appearing for future selection i.e,2012-2013 and the petitioner has to necessarily appear in theentrance examination during the year 2012-2013 and come out on merit,if he is really interested in getting admission for the academic year2012-2013. https://hcservices.ecourts.gov.in/hcservices/

12.I have considered the rival submissions made by thelearned Senior Counsel appearing for the petitioner, learned AdvocateGeneral for respondents 1 to 3 and the learned Standing Counsel forthe 4th respondent/Medical Council of India.13.The points arise for consideration in this writpetition are as follows:(1)Whether the petitioner is satisfying the eligibility normsfixedby MCI for admission to M.Ch course ?(2)Whether the petitioner can pray for admission in M.Ch courseduring the academic year 2011-2012 after the last dateadmission and seek for admission for the year 2012-2013 based onthe marks secured for selection to 2011-2012 academic year ?14.The petitioner has passed MBBS degree in the year 2006and PG Degree (MS) in April, 2011. He has applied for admission toSuper Speciality Course M.Ch and appeared in the entrance examinationconducted by the third respondent on 26.4.2011 with registrationNo.41024. He was awarded 48.75 marks out of 90 marks in the entranceexamination in Vascular Surgery. The total seats available for M.ChCourse (Vascular Surgery) is 4. As per the Prospectus, 50% of theseats i.e, two seats are to be filled up from among servicecandidates and remaining two seats are to be filled up as generalcategory. For M.Ch course 2011-2012 session the following candidateswere admitted: (i)Dr.Balaji.M, who scored 60.25 marks out of 100 marks wasselected as a private (General) candidate;(ii)Dr.Marudhu Durai.S., who scored 54.25 out of 100 markswas selected as service candidate; (iii)Dr.Sharmila D.N., who scored 49.75 out of 100 marks,belonging to BC category was selected under Service category. Thus, only three candidates out of 4 seats alone were admitted. Thelist of eligible candidates, furnished by third respondent reads asfollows:S.NoEE.No.NAMECOMMarksfor 90Exp.MarksTot.Marks1.41162Dr.Ashwin RammohanBC60.75565.752.41044Dr.Balaji MMBC59.25160.253.41147Dr.Thiruvarul MMBC54.00559.004.41078Dr.Rajamahendran RMBC51.75455.755.41039Dr.Maruthu Thurai SBC44.251054.256.41019Dr.Moideen Abdul Kadhar JBCM48.75452.757.41118Dr.Raj Kuma RSC46.50450.508.41137Dr.Sharmila D NBC45.75449.75 https://hcservices.ecourts.gov.in/hcservices/

9.41029Dr.Muthuraman PMBC39.75847.7510.41058Dr.Sam Pon Raj DBC46.50147.50The list of ineligible candidates reads as follows:S.NoEE.No.NAMECOMMarksfor 90Exp.MarksTot.Marks1.41024Dr.Jayanth V. KumarOC48.75048.752.41109Dr.Senthil Kumar KOC45.75247.753.41020Dr.Amar Chand DOC45.00146.004.41049Dr.Ganesan MOC30.751040.755.41034Dr.Alagu Muthu MOC37.50340.506.41149Dr.Parimuthukumar RBC37.50138.507.41009Dr.Saravanan RMBC31.30 132.50On a perusal of the list of eligible candidates it is evident thatseveral other candidates, who have secured more marks than thepetitioner, i.e., 48.75 marks are available for selection. In factfour candidates, who had secured 59, 55.75, 52.75 and 50.50 marks areavailable as per the list extracted above. Petitioner is the 5thcandidate having secured 48.75 marks, was chosen as ineligiblecandidate.15.The learned Senior Counsel appearing for thepetitioner submitted that the candidates, who secured 59, 55.75,50.50 marks out of 100 marks have not opted for admission byattending the counselling and the petitioner is the only candidatenot invited for counselling on the ground of not securing 50% ofaggregate marks i.e, entrance examination + experience marks.Therefore the petitioner is entitled to be considered.16.The learned Advocate General has not disputed the saidfact during the course of the arguments. The only contentioncanvassed before this Court by the respondents 1 to 3 is that thepetitioner having taken part in the selection process, is estoppedfrom challenging Clause 46(a) of the Prospectus at this juncture,which clearly states that 50% marks in aggregate is the eligibility.The MCI has taken a clear stand that the petitioner is satisfying theeligibility condition. In the light of the stand taken by MCI inthe counter affidavit, specifically stating that 50% marks are to besecured by a candidate in the "competitive test" and the experiencegained cannot be part of competitive test, I am of the view that thepetitioner cannot be treated as ineligible candidate for admission ashe has secured 48.75 marks out of 90 marks.17.The ten marks fixed for experience i.e, one mark foreach year is for arriving at the rank and not for eligibility, whichmeans if a candidate is available with experience, than the candidatewithout experience, the marks awarded to the experienced candidateshall be added to arrive at the ranking. In this case, as per the https://hcservices.ecourts.gov.in/hcservices/ MCI norms, petitioner has fulfilled the norms i.e., eligibility foradmission in M.Ch course and in the ranking he has not reached themarks fixed for selection. As stated supra, three candidates werehaving higher marks than the petitioner. However, they have notchosen to appear for counselling i.e, they were reluctant to go foradmission and they are also not claiming admission for M.Ch course in2011-2012. Thus, the petitioner has made out a case to hold thatClause 46(a) of the Prospectus cannot override the MCI Regulation asadmission to the medical courses and the examinations in all medicalcourse are to be conducted only under the MCI Regulations and not inany other manner. The said issue is no longer res integra.(i)In the decision reported in (1998) 6 SCC 131 (MedicalCouncil of India v. State of Karnataka) the Honourable Supreme Courtheld that the Medical Council Regulations have a statutory force andare mandatory. MCI is given such power to have overall vigilance toprevent sub-standard entrance qualification and the same would applyequally to PG medical courses.(ii)In the decision reported in (1999) 7 SCC 120(Dr.Preeti Srivastava v. State of M.P.) the Honourable Supreme Courtheld that the power to fix eligibility for admission in medicalcourses is vested with the Medical Council of India. Neither theState Government nor the Universities have power to fix theeligibility/norms for admission of students for conductingexamination, which is contrary to the MCI regulations.(iii)Same view is reiterated in the decisions reported in(2007) 10 SCC 201 (Maharashtra University of Health Sciences v.Paryani Mukesh Jawaharlal); AIR 2001 SC 3006 (State of Punjab v.Dayanand Medical College and Hospital); (2003) 7 SCC 83 (State ofM.P. v. Gopal D.Tirthani). The Honourable Supreme Court held thatany regulation made by the Universities/State Governments, which areinconsistent with the MCI regulation will not be valid to the extentof inconsistency.(iv)The First Bench of this Court in the decision reportedin 2011 (6) CTC 801 (The Tamil Nadu Dr.M.G.R.Medical University v.P.Anand) confirming the decision of P.Jyothimani, J., reported in2011 WLR 481 (P.Anand v. The Tamil Nadu Dr.MGR Medical University)held that the University while conducting examinations, is bound tofollow the norms fixed by the MCI. S.L.P.(Civil) Nos.35070–35110/2011 filed against the said First Bench decision were dismissedby the Honourable Supreme Court on 16.12.2011. In the decision ofthe First Bench, the argument that the University can fix highernorms than the one prescribed by MCI, relying the judgment of theSupreme Court reported in (2011) 4 SCC 606 (VisveswaraiahTechnological University v. Krishnendu Halder) was not accepted, asit found that fixing separate minimum marks for passing orthopaedicpractical in surgery paper of final M.B.B.S. Course cannot be treatedas fixing higher norms by the Tamil Nadu Dr.M.G.R. Medical University.(v)The Supreme Court in the case of State of Tamil Naduv. S.V.Bratheep (Minor), reported in (2004) 4 SCC 513 has upheld theright of the State Government in fixing higher eligibility normsi.e., merit. The power of the University in fixing 40% and 45% forSC and Others as against 35% and 40% fixed by the AICTE was upheld as https://hcservices.ecourts.gov.in/hcservices/ academic mark determines merit.(vi)In the decision reported in (2011) 4 SCC 606 (supra)also the Honourable Supreme Court held that higher percentage ofacademic marks can be fixed for admission to professional courseviz., engineering course.18.Here in this case, the entrance examination to assessthe merit of candidates was conducted for 90 marks and 50% of thesaid 90 marks is fixed as eligibility, which means 45 marks. Supposethe State Government is fixing 55% as the eligibility in the entranceexamination, one can justify that as higher norms fixed for admissionto sustain the argument based on the above two decisions of theSupreme Court. The respondents 1 to 3, instead of fixing higherpercentage of marks in the entrance examination, has chosen to addten marks on the basis of experience i.e, one mark for one completedyear after registration in the Medical Council, which means, amedical graduate after passing MBBS degree gets himself registered inthe Tamil Nadu Medical Council and even if he is keeping quietwithout practising medicine is awarded one mark for one year upto themaximum of ten marks for ten years. The said awarding of markscannot be treated as fixing higher marks for eligibility as statedabove. Ten marks are added based on experience only for arriving atthe rank of the candidates and the same cannot be treated aseligibility for admission. Awarding of marks for experience isupheld by this Court in W.P.No.14855 of 2009 and the petitioner hasalso not challenged the same.19.As rightly contended by the learned counsel for MCI aswell as averments in the counter affidavit filed by the MCI,petitioner having secured more than 50% of the marks in the entrancetest i.e, 48.75 out of 90, he cannot be treated as ineligiblecandidate for admission to M.Ch course. The petitioner having beenfound as eligible candidate as per the statutory regulation framed byMCI, the estoppel plea raised by respondents 1 to 3 is not applicableto the facts of this case. Similar issue was considered by theSupreme Court in the decision reported in 2011 AIR SCW 3937 (BarotVijaykumar Balakrishna v. Modh Vinaykumar Dasrathlal). In the saidcase fixing cut-off marks for selection in written test and testthough not stated in the advertisement, having been stated in thestatutory rule, the Supreme Court upheld the fixing of cut-off marksin both separately and rejected the contention raised i.e, the pleaof estoppel. In paragraph 31 the Supreme Court held thus,"31. ........... the rules framedunder Article 309 of the Constitution governingthe selection process mandated that there wouldbe minimum qualifying marks each for thewritten test and the oral interview, the cut-off marks for viva voce was not specified inthe advertisement. In view of the omission,there were only two courses open. One, tocarry on with the selection process and tocomplete it without fixing any cut off mark for https://hcservices.ecourts.gov.in/hcservices/ the viva voce and to prepare the select list onthe basis of the aggregate of marks obtained bythe candidates in the written test and the vivavoce. That would have been clearly wrong andin violation of the statutory rule governingthe selection. ..........." Thus, the first issue framed in this writ petition is held in favourof the petitioner.20.Insofar as the second issue i.e, regarding admissionfor M.Ch course for the academic year 2011-2012 after the expiry oflast date, the said issue is also settled. The Honourable SupremeCourt in the decision reported in (2002) 7 SCC 258 (Medical Councilof India v. Madhu Singh) held that no admission can be made in any ofthe medical courses after the expiry of cut-off date. The saidposition is reiterated in the decision reported in (2005) 12 SCC 563(Christian Medical College v. State of Punjab). In the decisionreported in AIR 2005 SC 666 (Mridul Dhar v. Union of India) (threeJudge Bench) in paragraph 32 it is held as follows:"32.Having regard to theprofessional courses into consideration, itdeserves to be emphasized that all concernedincluding Governments, State and Central both.MCI/DCI, colleges, new or old, students,Boards, universities, examining authorities,etc., are required to strictly adhere to timeschedule wherever provided for; there shouldnot be mid-stream admissions; admission shouldnot be in excess of sanctioned intake capacityor in excess of quota of any one, whether Stateor Management. The carrying forward of anyunfilled seats of one academic year to nextacademic year is also not permissible.21.The issue as to whether a candidate qualified foradmission in a particular year could be admitted in the subsequentyear due to expiry of the last date, came up for consideration beforethe Honourable Supreme Court in the decision reported in AIR 2011 SC3571 (Puneet Gulati v. State of Kerala). In the said case, havingnoticed the denial of seat to the eligible candidate, as a specialcase, the Honourable Supreme Court gave direction to admit thecandidate in the subsequent year, even though the appellant did notsit for the entrance examination for the subsequent year 2011-2012and he was directed to be given admission on the strength of hismarks in the entrance examination obtained in the year 2010-2011.The Division Bench of this Court in the decision reported in (2011) 8MLJ 606 (M.S.Muhammad Sheik Abdullah v. Secretary, SelectionCommittee) considered similar issue regarding admission to MBBScourse. Considering the fact that the candidate was denied admissiondue to the fault committed by the respondents, the Division Benchordered to give admission to the candidate for the subsequent yearbased on the rank secured in the previous year. Same was the view https://hcservices.ecourts.gov.in/hcservices/ taken by the Supreme Court in the decision reported in (2005) 12 SCC626 (Medical Council of India v. Naina Verma). In the said case alsoa candidate who was denied admission for the year 2003-2004 wasdirected to be given admission for the year 2005-2006.22.The petitioner having established his eligibility toget admission in M.Ch course 2011-2012, he can be considered foradmission to the said course in the academic year 2012-2013, if noother candidate secure more than 48.75 marks in general category inthe academic year 2012-2013. If any candidate under the saidcategory is having more marks than the petitioner viz., more than48.75, the petitioner cannot be given admission as the same will bedenying the right of other candidates, who are otherwiseeligible/entitled to get admission as number of seats available undergeneral category for M.Ch courses is only two. In the above referredcases, more number of seats were available and orders were passed onthe facts and circumstances of those cases.23.The learned Senior Counsel for the petitioner furtherargued that for the academic year 2011-2012 even though four seatsare available in M.Ch course, only three candidates are admitted andcontinuing their course, and therefore one seat is still vacant andtherefore one additional seat may be ordered to be created by the MCIfor the academic year 2012-2013. The said request cannot beconsidered, as the Honourable Supreme Court has cautioned the HighCourts not to give such directions to create seats in the decisioncited supra i.e, in AIR 2005 SC 666. If the respondents 1 to 3approach the 4th respondent to that effect, the MCI can consider thesaid request if the same is possible and no direction as requested bythe learned Senior Counsel can be ordered to that effect by thisCourt. 24.In fine, taking into consideration all the aboveaspects, I am of the view that the writ petition can be disposed ofgiving direction to the respondents 1 to 3 as follows:(a)The petitioner having secured 48.75 marks out of 90 in theentrance examination, he is eligible for admission to M.Ch course asper the MCI norms/Regulation.(b)The cut-off date for 2011-2012 being over as early as on30.9.2011, even though one seat is vacant in M.Ch course, nodirection to admit the petitioner for the academic year 2011-2012 canbe ordered now.(c)For the year 2012-2013, if no other general candidate isavailable with higher marks than petitioner's marks i.e, 48.75, thepetitioner shall be given admission for M.Ch (vascular surgery)course.(d)This order will not stand in the way of the petitionerparticipating in the entrance examination for the academic year 2012-2013 and competing with others. https://hcservices.ecourts.gov.in/hcservices/ (e)There is no order as to costs.(f)Connected miscellaneous petitions are closed.vrSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Secretary to Government,Health and Family Welfare Department,Fort St.George, Chennai - 600 009.2.THe Director of Medical Education,No.162, Periyar EVR High Road, Kilpauk,Chennai - 600 010.3.The Secretary, Selection Committee,Directorate of Medical Education,No.162 Periyar EVR High Road,Kilpauk,Chennai - 600 010.4.The Secretary, Medical Council of India,Pocket 14, Sector 8, Dwaraka, New Delhi - 110 077.+ 1 cc to Mr. V.P. Raman, Advocate SR No.5605+ 1 cc to Mr. K.J. Parthasarathy, Advocate SR No.5341VSV(CO)SR/1.2.2012Order in W.P.No.25510 of 2011