& ADDITIONAL v. RAHUL RAVIND

( 7 )W.A. NO.315/201245. DR.MANOJ.S.L., AGED 31, S/O.P.SIVAIKUTTY, MANJUSHA BHAVAN,KALLAMPALLI, SREEKARIYAM, THIRUVANANTHAPURAM WORKING AS CASUALITY MEDICAL OFFICER, TALUK HEAD QUARTERS HOSPITAL, NDUMANGAD. ADDL.R40 TO R45 ARE IMPLEADED AS PER ORDER DATED 04/04/2012 IN IA 282/2012 IN SUPPOT OF THE APPELLANT. R1 TO R3 BY ADVOCATE GENERAL SRI.K.P.DANDAPANI BY SPL.GOVERNMENT PLEADER SMT.GIRIJA GOPAL BY ADV. SRI.ALEXANDER THOMAS, SC, MCI R5 & R6 BY ADV. SRI.B.RAGUNATHAN BY ADV. SRI.G.GOPALAKRISHNA PILLAI BY ADV. SRI.R.SRINATH BY ADV. SRI.VIPIN VARGHESE R7 BY ADV. SRI.T.B.HOOD BY ADV. SMT.M.ISHA R8 BY ADV. SRI.C.V.MILTON R9 TO R14 & R16 & R17 & R37 TO R41 BYADV.SRI.P.RAVEENDRAN PILLAI BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.) R15 AND R19 TO R32 BY ADV. SRI.GEORGE MATHEWS R18 & R33 TO R35 & R36 BY ADV. SRI.KALEESWARAM RAJ BY ADV. SMT.CELINE JOSEPH R42 TO R45 BY ADV.SRI.P.RAVEENDRAN PILLAI BY ADV. SRI.K.K.MOHAMED RAVUF BY ADV. SRI.K.PAUL KURIAKOSE BY SRI.ALEXANDER THOMAS, SC,DENTAL COUNCIL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10/04/2012, ALONG WITH WPC. 4279/2012, WPC. 6550/2012, WPC. 8607/2012, THE COURT ON 02-05-2012 DELIVERED THE FOLLOWING:svs W.A. NO. 315/2012APPENDIXPETITIONER'S ANNEXURES: NILRESPONDENT'S ANNEXURES:R4(a):COPYN OF AMENDMENT NOTIFICATION DATED 21/07/2009.R4(b):COPY OF NOTIFICATION DATED 19/11/2009.R4(c):COPY OF NOTIFICATION DATED16/04/2010.R4(d):COPY OF GAZETTE OF INDIA DATED 27/12/2010.R4(e):COPY OF GOVERNMENT OF INDIA LETTER DATED 30/12/2011.R4(f):COPY OF NOTIFICATION DATED 27/02/2012.R4(g):COPY OF LETTER NO.MCI-23(1)2010/MED80127 DATED 13/03/2010.R6(a):COPY OF THE RELEVANT PART OF THE RANKED LIST FOR GENERALQUOTA.R6(b):COPY OF THE RELEVANT PART OF THE RANKED LIST FOR SERVICE QUOTA.//TRUE COPY// P.S. TO JUDGEsvs MANJULA CHELLUR, Ag.C.J & V.CHITAMBARESH, J.----------------------------------------------W.A.No. 315 of 2012,W.P(C).No. 4279 of 2012,W.P(C).No. 6550 of 2012&W.P(C).No. 8607 of 2012----------------------------------------------Dated this the 2nd day of May, 2012JUDGMENTManjula Chellur, Ag.C.J.WA 315/2012 is filed challenging an order dated 22.2.2012refusing an interim relief in W.P.No. 4279/2012, by the learnedsingle Judge. 2.The Writ Petition came to be filed by the petitionerchallenging Ex.P3 an order issued by the State Government,alleging the same as contrary to the stipulation contained inclause 9 of Ex.P1 Prospectus. The appellant appeared forCommon Entrance Examination for admission to Post GraduateMedical Course in the State. In Ex.P3, the State Government hadgiven concession or relaxation to service quota candidates sofarasnegative marks, hence it is contended that Ex.P3 is in violation ofArticle 14 of the Constitution of India and sought for quashing thesame. As the learned Single Judge refused interim relief of WA.315/12 & CONNECTED CASES2staying the operation of Ex.P3, appellant filed this appeal. All arerequired to appear for Common Entrance Examination and onlythose candidates securing minimum of 50 marks at theexamination would be eligible for admission process. Thiscondition was stipulated and implemented at the instance of the4th Respondent Medical Council of India (for short MCI). As Ex.P3has no prior approval of the 4th respondent, the withdrawal ofnegative marking for in-service candidates is contended, againstthe regulations prescribed by the MCI. According to the petitionerit is nothing but a move to facilitate certain candidates in serviceto secure Post Graduation Seats. Therefore, the action in issuingEx. P3 is highly motivated and the move is nothing but a malafideone. There is no provision for bifurcation of allotment of seatsbetween service quota candidates and non-service quotacandidates so far as the 4th Respondent is concerned. On the faceof it Ex.P3 has no nexus with the object of the selection processas there is no basis for granting such relaxation, is the contentionof the petitioner. At no point of time such relaxation wasconceived by this Court. It is nothing but abuse of power by the1st Respondent State and cannot be a policy which could havepositive results is the stand of the petitioner. If Ex.P3 is given WA.315/12 & CONNECTED CASES3effect to, it would lead to two categories of candidates, one whogets admission with negative marks with rules applicable and theother who gets admission with out negative marks. With theseaverments, he seeks for the following reliefs: i)To issue a writ, order or direction settingaside/quashing Exhibit P3 order asarbitrary, unreasonable and illegal andhence violative of Article 14 of theConstitution of India. ii)To grant such other reliefs including interimreliefs as may be found just, necessary andreasonable in the facts and circumstancesof the case. iii) To direct the respondents to pay thepetitioner the entire costs of theproceedings. 3.So far as W.P.(C) 8607/2012 is concerned thepetitioner applied for P.G. course under general merit quota. Heeven attended the entrance examination on 19.02.2012. He WA.315/12 & CONNECTED CASES4could not secure minimum eligibility marks of 50% out of 1200marks. Exts. P3 and P4 have resulted in special privilege toservice quota candidates. This also has an impact on the otherservice quota candidates because the candidates who could nothave secured eligible marks with negative marking have securedeligible marks, thereby obstructs service quota candidates whoare more meritorious to secure a seat. It is nothing but adiscriminatory approach on the part of the 1st Respondent State.Therefore, they challenge the same as gross violation of Article 14of the Constitution of India. If only negative marking was notapplicable to the petitioner, he would have become eligible for thePost Graduation course as he secured 476.3514 out of 1200marks. There cannot be any different method in the matter ofdeducting negative marks so far as service quota candidates andnon–service quota candidates. The service quota candidates arenot separate class for that purpose as different from open quotacandidate. If any privilege is extended it has to be extended to allother candidates like the petitioner who had applied in thegeneral merit quota. With these averments he has sought for thefollowing reliefs: WA.315/12 & CONNECTED CASES5i)Call for the records leading to Exhibits P3, P4, P5 and P6 andquash the same to the extent it does not grant the privilegethat extended to service quota candidates in the matter ofdeducting negative marks or incorrect responses to thegeneral merit quota candidates including the petitioner. ii) Issue a writ of mandamus or any other appropriate writ orderor direction directing the respondents to conduct EntranceExamination as per Exhibit P1 afresh without deductingnegative marks for incorrect responses by extending theprivilege granted to service quota candidates as per ExhibitsP3 and P4 to all other candidates or in the alternative toissue a writ of mandamus or any other appropriate writorder or direction to grant the privilege granted to theservice quota candidates as per Exhibits P3 and P4 to theapplicants in general merit quota including the petitioner bywithout deducting the marks for incorrect responses byrevaluing all the answer sheets in the Entrance Examinationconducted as per Exhibit P1 and by declaring the resultsafresh by the 3rd respondent. 4.In W.P. (C) 6550/2012 the petitioner a doctor who is inservice had applied for Post Graduation Course both under openquota as well as service quota. It was only a single examination.According to the petitioner Ex.P3 Government order issued by theState Government at the fag end of the selection process one day WA.315/12 & CONNECTED CASES6prior to the test by withdrawing negative marks under Ex. P3 isnothing but an arbitrary and illegal approach on the part of thefirst respondent State. It is further contended, the award ofnegative marks in the competitive test for P.G. is a practice thathas been followed for several years and the same could not becancelled abruptly without the approval of the MCI. Ex. P3 isnothing but a colorable exercise of power for extraneousconsideration, is the contention of the petitioner. The result ofEx.P3 is discrimination in the matter of admission to P.G. Coursebetween open quota candidates and in-service candidates, whichwas not at all contemplated under Ex.P1 Prospectus. Thestipulation regarding negative marks applies to physicallychallenged category as well, though they are entitled forrelaxation. By virtue of Ex.P3 less meritorious candidates areinducted, contending as above, he sought for the following reliefs:i)Issue a Writ of Certiorari or other appropriate writ order ordirection quashing Ex. P3 as unjust, illegal and arbitrary. ii)Declare that the decision taken by the Government by wayof Ex. P3 at the fag end of the selection process is illegal anduntenable and therefore the same should not beimplemented. WA.315/12 & CONNECTED CASES7iii)Issue a Writ of Mandamus directing the respondents torefrain from implementing Ex. P3. iv)Issue such other writs, order or directions as this Hon’bleCourt deems fir in the facts and circumstances of the case. 5.During the course of pendency of this petition, severalsimilarly situated persons got impleaded and so far as the serviceof writ petition, the petitioner was allowed to take notice by paperpublication indicating the date of appearance as 02.04.2012 byfiling an application I.A.No.4542/2012 so as to see that in case thewrit petition is allowed, the affected candidates are put on notice.6.As against this, the first respondent Secretary toGovernment, Health and Family Welfare Department has filedcounter affidavit. According to the 1st respondent the ground ofchallenge that it has no nexus with the object of selection processand as such violative of article 14 of the Constitution of India;that the Government has not bifurcated the seats available toPost Graduate students between service quota and non-servicequota is without any foundation as out of total number of seatsavailable in P.G. Degree/Diploma 50% of seats are set apart tothis group who belong to the open quota and 40% out of the WA.315/12 & CONNECTED CASES8remaining 50% is set apart to in-service candidates whichcomprises of Doctor’s from Medical Education, Service Health,and Municipal Service.7.The contentions raised by the petitioners according tothe 1st respondent are totally unacceptable. According to the 1strespondent after considering various aspects of the issue,pursuant to the judgment in W.P.(C)3051/2012 and connectedcases, such a decision was taken. It is the stand of the 1strespondent that in-service candidates are the persons who havegraduated some time in the past and have joined the GovernmentService and on account of they being occupied with obligationsbeing in the service of Government are likely to distancethemselves from theoretical studies and as such they cannot beexpected to compete effectively with fresh medical graduates.The very permission for in–service candidates to do PostGraduation by providing a separate channel according to the 1strespondent is to enable them to equate themselves to caterspecialised treatment at Government hospitals and otherDepartments as stated above. This would enrich the healthservice of the State. The open quota candidates may notnecessarily get attracted to public service after qualifying WA.315/12 & CONNECTED CASES9themselves in post graduation. The in–service candidates and theopen quota candidates are two classes by themselves and thepurpose sought to be achieved by permitting the in–servicecandidates to acquire Post Graduation qualification cannot beover looked and ignored. The in-service candidates who would beable to attend higher academic qualification would be available tobe posted in the rural areas by the State Government, becausethe retention of their services under the State Government issecured by obtaining a bond for ten years which is a conditionprecedent for them for taking admission for post graduation ordiploma courses. Such bond cannot be insisted from non-servicecandidates as they would only be looking for better futureprospects after obtaining their post graduation rather thanserving under the State service. In respect of general quotacandidates a bond to the effect that they shall serve the StateGovernment for one year alone is insisted upon. The entireexercise is only to have better doctors in public sector also. Thestandard of education prescribed is not at all diluted so far asadmission to post graduation degree / diploma courses as 50%marks is still required to be obtained even by in-servicecandidates for qualifying themselves in the entrance examination. WA.315/12 & CONNECTED CASES10As they would be unable to compete with the open quotacandidates, the condition of negative marking was diluted with aview to encourage those in-service candidates who obtainminimum qualifying marks also could get themselves admitted topost graduate courses. There is no decrease in the qualifyingmarks prescribed by the MCI. Therefore, there is no violation ofany stipulation prescribed by MCI. Larger Public Interest is themotto behind such step. Standard of excellence is not given a goby as 50% minimum qualifying marks is prescribed for all thecandidates irrespective of from which channel they come from.The move is only to facilitate Medical Practitioners in service, toequip themselves academically for providing better treatment tothe general public. The above decision was taken having regardto the similar situation for admission to Medical Post GraduateCourse in the State of Tamil Nadu and also for MDS entranceExamination in the State of Kerala. There is no illegality orarbitrariness as claimed by the Petitioners. This concession wasdone in lieu of their rendering service under the StateGovernment which includes rural service also. The attempt of theopen quota candidates like petitioners is only to take over theexclusive quota meant for in-service candidates. WA.315/12 & CONNECTED CASES118.It is further contended, on account of dearth ofspecilised doctors in Health Service Department in the State ofKerala, the Government extended the opportunity to in-servicedoctors to get themselves admitted to post Graduate courses inorder to facilitate the general public to have special doctors evenin Government Hospitals. Practice of negative marking wasundertaken only with a view to assess the capability of candidatesand on account of lapse of considerable time from the date oftheir graduation, the in-service candidates are not expected tohave the same capability. Negative marking was introduced onlywith the purpose of avoiding blind marking of answers andassessment of exactitude but the same cannot be made theyardstick to in-service candidates also. On account of the aboveobjectives, the State Government took a decision which isperfectly within the regulations stipulated by the MCI. With theseaverments, they have sought for dismissal of the writ petitionsand also the appeal. 9.The impleading applicants in W.P.(C)No.6550/12 haveraised more or less the same contentions as the other writpetitioners. WA.315/12 & CONNECTED CASES12 10.We have heard learned counsel Mr. Angel Mathewsappearing for the appellant in the writ appeal and the petitioner inW.P.(C)No.4279/2012; Mr. Kaleeshwaram Raj appearing for thepetitioner in W.P.(C)6550/2012; Mr. Joseph Sebastian Puriadianappearing for petitioner in W.P. (C) 8670/2012; Learned AdvocateGeneral representing the respondent State; Mr. AlexanderThomas–learned Standing counsel for the MCI and learned seniorcounsel Mr. B.R. Kaimal arguing on behalf of the respondents.11.From the above pleadings and the arguments, wenotice that the appellant and other writ petitioners challengeEx.P3-Government Order providing withdrawal of negativemarking so far as in-service candidates as, in violation of Article14 of Constitution of India and malafide.12.According to the learned counsel appearing for thepetitioners in various writ petitions, the classification must bebased on intelligible differentia which distinguish persons orthings grouped together from those excluded. Such differentiamust have a rationale relationship to the object sought to beachieved by the statute in question with the qualification that thedifferentia and object are different so that the object by itselfwould be the basis for classification. According to the petitioners, WA.315/12 & CONNECTED CASES13the very object of the common entrance examination is toevaluate all candidates by a common yardstick which is a wellsettled principle in the case of DR.PREETHI SRIVASTAVA –vs-STATE OF M.P. (1999) 7 SCC 120. According to them, in theabsence of Ex.P3 not having any rationale explanation to theobject stated above, it is nothing but, violation of Article 14 of theConstitution of India. Once single common entrance examinationis contemplated, there has to be only single or common processof evaluation of the answers. Therefore, Ex.P3 suffers frommalafides such as without application of mind as well settled byApex Court in Preethi Srivatava’s case. It is also well settledprinciple that State cannot decide qualifying marks and lay downrules and norms of admission for medical P.G. Courses as it is MCIwhich has to do the same. When separate entrance examinationfor service and open category candidates is prohibited by theApex Court (as indicated in the judgment of STATE OF M.P.AND OTHERS Versus GOPAL D. TIRTHANI AND OTHERS(2003) 7 SCC 83) it is also impermissible to have separateevaluation is the contention. It is further argued that SupremeCourt negatived the contention of service candidates for adeclaration that they are qualified for admission to P.G. Courses in WA.315/12 & CONNECTED CASES14Medicine without insisting on prescribed minimum qualifyingmarks. According to the petitioners, the challenge is to Ex.P3and not the rank list which is prepared taking into considerationEx.P3. If Ex.P3 is unconstitutional, the consequence of Ex.P3 hasto be negatived automatically, is the stand of the petitioners.According to the petitioners, the situation and the state of affairsthat existed at the time of Ex.P3 alone, would be the criterion todecide and not the state of affairs at the time of hearing thearguments.13.So far as the defence raised in the counter affidavit ofthe State, the learned Advocate General by placing reliance onseveral decisions contended that candidates do not have anyright to get admission on the basis of Prospectus and theGovernment is free to amend the Prospectus by virtue of clause19 of the Prospectus. According to the learned AdvocateGeneral, classification of in-service candidates and open categorycandidates is based on intelligible differentia and there is noelement of hostile discrimination. Therefore, the challenge toEx.P3 is unsustainable. There is no violation of standard set byMCI. Placing reliance on several cases, they contend that tomeet a just and appropriate need, special treatment can be WA.315/12 & CONNECTED CASES15extended to in-service candidates and the same does not amountto discrimination or arbitrariness. According to the learnedAdvocate General, proper balance has to be struck both by theMCI, by Central Government and the State in exercise of theirrespective powers and the MCI cannot be ascribed with suchpowers as in respect of areas over which the state assigned goalshave to be performed. 14.The learned Advocate General seriously challenged thelocus standi of the petitioners to challenge the amendment.According to them, the petitioners cannot contend that Ex.P3amounts to changing the rules after the game has started.Therefore, the candidates aspiring for seats cannot have anyfundamental right to be enforced in respect of the same. TheProspectus is only an invitation for application to the course foradmission. It cannot be equated with that of a notification forpublic employment. The general quota candidates and in-servicecandidates have separate quota set apart for themselves.Therefore, the open quota candidates cannot challenge theprocedure adopted to evaluate in-service candidates which is adistinct class by itself. So far as in-service candidates who areimpleaded, by no stretch of imagination can assail the withdrawal WA.315/12 & CONNECTED CASES16of negative marks in respect of in-service candidates as they arealso entitled for such benefit. Though in-service candidates whomay not secure admission on account of their lower seniorityposition, cannot attack the amended provision since there is nodiscrimination inter-se between the in-service candidates. It isfurther contended by learned senior counsel Mr. B.R. Kimalsupporting the stand of the Advocate General, that the selectioncommittee can evolve such procedure as it deems fit for selectioneven after the commencement of the selection process and hefurther submits it is impermissible for the candidate to challengethe selection process after having participated in the same.15.So far as the stand of the MCI – 4th respondent, itspowers under the Indian Medical Council Act, empowers them toprescribe standards in medical education as well as to frameregulations on the subject. The P.G. regulations of theGovernment are binding in its nature. The Post Graduate MedicalEducation Regulations, 2000 came to be introduced andsubsequently amended by notification dated 21.7.2009.According to Cl. 9 for selection of post graduate students adefinite process is required which prescribes mainly merit.According to the MCI, the regulations and decisions of MCI are WA.315/12 & CONNECTED CASES17binding not only on the Universities but also the StateGovernment. The Central Government by letter dated 14.1.2010requested the MCI to examine the issue of defining remote anddifficult areas so that doctors can avail the benefit of recentprovision made in the MCI regulation relating to incentives forrural posting in terms of reservation of seats in PG Diploma oradditional marks in entrance test for admission to PG MedicalCourse and accordingly, the committee has approved the same.This is in force from 16.4.2010. According to the MCI, reasonableweightage to service rendered in rural and tribal areas by in-service candidates cannot be given for attaining eligibility as thecandidate has to acquire minimum marks prescribed for eligibilityfor admission to post graduate course and weightage can only begiven to eligible candidates for preparing the merit list. In otherwords, no candidate who has failed to obtain minimum eligibilitymarks as prescribed by the MCI shall be admitted to any course inthe said academic year. 16.So far as the present situation is concerned, CommonEntrance Test was notified for both general or open categorycandidates and in-service quota candidates. All the candidatesmust get minimum eligibility marks in the entrance test as per WA.315/12 & CONNECTED CASES18clause 9 of the Prospectus. Each answer with correct responsecarries 4 marks and the negative marking will be adopted forincorrect answer and 1 mark will be deducted for each incorrectresponse and 0 mark will be given for questions not answered.On 19.2.2012 at the venue of the entrance examination it wasannounced that no negative marking for incorrect response for in-service candidates would be awarded. Modified Prospectus wasissued on 18.2.2012. According to the 4th respondent, CommonEntrance Test for regulating students to PG course is a must. Thisis to have a uniform criterion for judging the merit of allcandidates. According to them, MCI is the sole repository of thepower to decide on the qualifying marks in such commonentrance examination for PG medical admissions and that thestate authorities cannot impinge on the standards in institutionsfor education as it is exclusively within the purview of the unionlist as per entry 66 of the union list. This is binding on the State.This position was clarified in GOPAL TIRTHANI’S casereported in 2003 (7) SCC 83. In the said case, it was held thata Common Entrance Test and minimum qualifying marks asdetermined by experts in the field of medical education was amust. Therefore, according to the MCI, State Government and WA.315/12 & CONNECTED CASES19Universities cannot dilute the standard fixed by MCI lowering thequalifying marks because the Common Entrance Test is to assessthe knowledge and intelligence quotient of a candidate whetherhe would be able to prosecute post graduate studies if allowed todo so and secondly, assess the merit of inter-se candidates whichis of vital significance at the counseling when it comes to allottingsucceeding candidates to different disciplines wherein the seatsare limited and some disciplines are considered to be morecreamy and are more coveted than the others. When minimumqualifying marks cannot be lowered or relaxed contrary to MCIregulations and if the number of in-service candidates do notqualify at the entrance examination, the seats so left vacant shallbe diverted and made available for open category candidates.The underlying principle is to have a uniform criterion andcommon yardstick. Hence, separate entrance examinations wereprohibited after introduction of NEET (National Eligibility – Cum –Entrance Test) for regulating PG admissions 2013 – 14 onwards.The States and competent authorities can conduct the CommonEntrance Test for admission to PG courses in the State upto theacademic year 2012-13. In this process, MCI regulations do notexpressly stipulate that there should be or should not be negative WA.315/12 & CONNECTED CASES20marking in the Common Entrance Test. Therefore, upto 2012-13the State authorities have the discretion to decide whether or notto adopt negative marking in the evaluation of such CET. Havingregard to the principles laid down by various decisions of theApex Court, it will not be reasonable and legal to dispense withnegative marking for evaluation of one category of candidateslike service candidates while retaining such process for opencategory candidates. According to the MCI there has to beuniform assessment norms for evaluating the performance of allcandidates in the tests concerned. 17.With the above contentions and arguments at ourcommand, we proceed to formulate the following points for ourconsideration:1.Whether by virtue of Clause 19 at Ex. P-1 theGovernment is empowered and justified in amending theProspectus for admission to post graduate medicaldegree / diploma course, 2012 in terms of Ex. P-3?2.Whether the amendment in question to the Prospectusextending benefit to in-service candidates results inhostile discrimination on account of arbitrary decision? WA.315/12 & CONNECTED CASES213.Whether withdrawal of negative marking in respect of in-service quota candidates will result in dilution of standardprescribed by the MCI in respect of admission to PGMedical course?18. Ex. P-1 is the Prospectus for admission to Medical PostGraduate Degree / Diploma Courses, 2012 which refers todifferent aspects of the matter like duration of the court, fee,eligibility for admission, number of seats available, seats undergeneral merit quota and reservation quota; what happens to un-availed seats of SC & ST; reservation of seats for servicecandidates, eligibility for service quota; how and when to apply,entrance examination – method of examination and evaluation,etc. Clause VII refers to reservation of seats for servicecandidates and sub-clauses refer to various terms and conditionspertaining to service candidates. It also refers to who would allcome within the status of service quota candidates. Other detailsneed not be looked into as we are not concerned with the otherterms and conditions. However, sub-clause (b) of clause VII refersto application and selection under service quota which reads asunder: WA.315/12 & CONNECTED CASES22“ Application & Selection under Service Quota.The service candidates should apply as stipulated inclause VIII of this Prospectus. The controlling officer /Head of Department concerned will verify theapplication and documents, prepare a provisional ranklist according to the seniority of the candidates andpublish it providing sufficient time for submittingcomplaints/objections. The appeals/complaints, if any,against the provisional rank list should reach the Headof Department within the time limit prescribed.Objections through email will not be considered. Thefinalised Provisional Rank List along with the individualapplications and objections, if any, received will beforwarded to the Director of Medical Education within45 days from the last date fixed for the receipt ofapplication who is the convener of the PostgraduateSelection Committee. The DME will place the samebefore the Post graduate Selection Committee for theselection of the candidates. The committee willfinalise the rank list. The PG selection committee havepower to deny admission in respect of the servicecandidates who are facing disciplinary action on thebasis of the recommendations made by HOD’sconcerned depending upon the gravity of the offence.However, this will be subject to review and approval ofthe Government.” WA.315/12 & CONNECTED CASES2319. Clause IX refers to Entrance Examination – method ofexamination and evaluation, which is very relevant for thecontroversy on hand. Sub-clause (a) of Clause IX reads as under:“ (a) Mode of selection by Entrance Examination:- (i) The competitive entrance examination shall beof the standard of M.B.B.S Examination and shallcover all the subjects of the M.B.B.S Course. Allquestions will be of objective type. All entries in theOMR sheet including filling of bubbles should be doneby using ball pointed pens only (Blue or Black). Eachanswer with correct response shall be awarded FOURmarks. Negative marking will be adopted for incorrectresponses. ONE mark will be deducted for eachnegative response and ZERO mark will be given forthe questions not answered. More than one answerindicated against a question will be deemed asincorrect response and will be negatively marked. Aminimum of 50% mark in the entrance examination ismandatory for general category candidates to becomeeligible for admission as per the Medical Council ofIndia Postgraduate Regulations. In case of candidatesbelonging to SC/ST and SEBC the required minimummarks in the entrance examination is 40% and in caseof candidates with locomotory disabilities of lowerlimbs between 40% and 70%, the required minimummarks shall be 45%.” WA.315/12 & CONNECTED CASES2420. Clause XIX is a general clause empowering theGovernment with certain powers which reads as under:“ General: Notwithstanding anything containedin the Prospectus, the Government may at any time,on their own volition or otherwise after calling therecords of the case, revise any order passed by asubordinate authority. This Prospectus is subject tomodification / addition as may be considerednecessary by the Government and issued as executiveorders / notification.”(emphasis supplied by us)21. It is not in dispute that Common Entrance Test wasscheduled on 19.2.2012. Ex. P-3 is the order dated 18.2.2012 ofthe Government which reads as under:“ As per the judgment read above, the Hon’bleHigh Court has directed the Government to considerthe representations of the petitioners in WP (C)Nos.3051, 3938, 3988, 3966 OF 2011 and pass a finalorder before the results of the PG Medical EntranceExaminations 2012 are published. The petitionershave requested to dispense the negative markingsystem for Service Quota candidates for PG Medical WA.315/12 & CONNECTED CASES25Entrance Examinations 2012.Government have examined the matter inconsultation with the Director of Medical Education andfound that the Service Quota candidates appearing theEntrance examination for Post Graduate DentalAdmission are exempted from the negative marking.In the circumstances Government are pleased toincorporate the following condition in Clause IX a (I) ofthe Prospectus for Admission to Post Graduate MedicalDegree / Diploma Courses, 2012.“There will be no negative marking for incorrectresponses, in case of Service Quota candidateappearing for the Common Entrance Examination.”The Government order read above standsmodified to the above extent and the judgment of theHon’ble High Court is complied with accordingly.”Ex. P-2 is the press release which came to be issued on18.2.2012, which is nothing but the gist of Ex. P-3. According tothe appellant and writ petitioners, a day prior to the examination,press release came to be issued and on 19.2.2012 at the venue ofthe examination it was announced that there will not be negativemarking for incorrect responses so far as service quotacandidates. One of the main defenses raised by the learned WA.315/12 & CONNECTED CASES26Advocate General and also Mr. B.R. Kaimal – senior counselappearing for some of the respondents is that having appearedfor the examination, it is not open to the petitioners to challengeEx.P-3. It is also contended once rank list is published, merechallenge to Ex.P-3 is of no avail. Reliance is placed on thedecisions reported in K.H.Siraj v. High Court of Kerala (2006)6 SCC 395 & Vijendra Kumar Verma v. Public ServiceCommission (2011) 1 SCC 150. So far as this argument, weare unable to appreciate the same. When the examination wasscheduled on 19.2.2012, if there was an announcement at thevenue of the examination, the candidates other than servicequota candidates or some of the service quota candidates as wellwho are aggrieved by the last minute change of method ofevaluation introduced by the State Government would bedefinitely in a dilemma whether they should write theexamination or not. Such announcement being out of the blue,one cannot expect the candidates to leave the examination hall insearch of a lawyer. No sane person would be expected to do soas they would not like to waste precious time of one year waitingfor the next Common Entrance Test. As could be seen from therecords, on 19.2.2012, entrance examination was conducted, WA.315/12 & CONNECTED CASES27W.P.(C) 4279/2012 was filed on 21.2.2012 within a matter of twodays. This 2 days time is definitely explainable as they must havecontacted the advocate and the advocate must have taken 1 or 2days time to prepare the writ petition and file the same.Therefore, it is not open to the respondents to contend thathaving taken the examination, when the results were announcedindicating failure so far as the appellant and petitioners areconcerned, the petitioners have approached the Court and thesame cannot be accepted, because the writ petition came to befiled much prior to the evaluation and Rank List prepared by theauthorities concerned.22. Then coming to the other argument of non-challenge tothe Rank List, if petitioners were to convince the Court that Ex.P-3deserves to be quashed as illegal and arbitrary, automatically allconsequences arising out of Ex.P3 have to be set aside.Therefore, without a challenge to the Rank List, the petitionersstill can maintain their stand that Ex.P-3 deserves to be quashed. 23. Then coming to the stand of the petitioners that the verymove of the Government is in violation of Article 14 as Ex.P-3creates discrimination between 2 similarly placed groups apartfrom the move being in direct conflict with the law laid down by WA.315/12 & CONNECTED CASES28majority decision of the Constitutional Bench of the Apex Court inDr. PREETI SRIVASTAVA vs. STATE OF M.P. & ORS.Reported in (1999) 7 SCC 120, several issues arose forconsideration before the Constitutional Bench. The first issue thatarose was as under:“The question is whether apart from providingreservation for admission to the postgraduate coursesin Engineering and Medicine for special categorycandidates, is it open to the State to prescribedifferent admission criteria, in the sense of prescribingdifferent minimum qualifying marks, for specialcategory candidates seeking admission under thereserved category.”Their Lordships while answering the above question have goneinto detail several aspects of the matter referring to Entry 66 ofList no.1, Entry 25 of List no.3 and also Regulation 33 of the MCI.They had also gone into the need and purpose of CommonEntrance Examination with reference to standard of assessmentof merit of the students. In that context their Lordships opinedthat they need not examine whether reservations arepermissible at the post graduate level in medicine as the said WA.315/12 & CONNECTED CASES29issue was not raised before the Constitution bench. Therefore,they felt there was no need to express opinion on the same.They were mainly concerned whether any special provision inthe form of lower qualifying marks in PGMEE can be prescribedfor the reserved category. While rejecting the arguments thatthere was no need for any qualifying marks prescribed for theCommon Entrance Examination for the reserved category, theyopined there can be lower qualifying marks for the reservedcategory of candidates as against general category ofcandidates if an expert body like the MCI opines so, but thedisparity between the qualifying marks obtained by these twogroups cannot create a big disparity at the post graduate level.It was held that the post graduate level is only one step belowthe apex level of medical training and education where noreservations are permissible and selections are entirely on merit.They further held, at only one step below said level, the disparityin qualifying marks is possible if the expert body permits and itmust be minimal. They also held that it must be maintained at alevel where it is possible for the reserved category candidates tocome up to certain level of excellence when they qualify in thespeciality of their choice and the same should be because of the WA.315/12 & CONNECTED CASES30public interest where they have to render excellent service. Thequestion that arose was 40% qualifying marks were prescribedfor the general category; 20% for the reserved category andsuch disparity became the bone of contention, whereas the MCIhas permitted 35% qualifying marks to the reserved category asagainst qualifying marks of 40% to the general category. Whileconsidering this issue another question that came up forconsideration before their Lordships was who should decide thequalifying marks and will it affect the standard of education.Paragraphs 34, 35, 36 & 38 are relevant which read as under:“ 34. Learned counselfor the States of UttarPradesh and Madhya Pradesh contend that it is for theStates to decide the qualifying marks which shouldbe prescribed for the reserved category candidates atthe PGMEE. It is a matter of state policy. The MedicalCouncil of India cannot have any say in prescribing thequalifying marks for the PGMEE. The two States havecontended that it is the State which controlsadmissions to the post-graduate courses inmedicine. It is for the State to decide whether toprovide a common entrance examination or not.Thisexamination may or may not have any minimumqualifying marks or it may have different qualifying WA.315/12 & CONNECTED CASES31marks for different categories of candidates. It is,therefore, notopen to any other authority tointerfere with the rules for admission to the post-graduate medical courses in each State. They havealso contended that a common entrance examinationis merely for the purpose of screening candidatesand since all the candidates have passed the M.B.B.S.examination the standard is not affected even if nominimum marks are prescribed for passing thecommon entrance examination. The latter argumentwe have already examined and negatived. The othercontention, however, relating to the power of theState to control admissions to the post-graduatecourses in medicine requires to be examined.35. The legislative competence of the Parliamentand the legislatures of the States to make laws underArticle 246 is regulated by the VIIth Schedule to theConstitution. In the VIIth Schedule as originally inforce, Entry 11 of List-II gave to the States an exclusivepower to legislate on"education including universities subject to theprovisions of Entries 63, 64, 65 and 66 of List-I andEntry 25 of List-III." Entry 11 of List-II was deleted and Entry 25 ofList-III was amended with effect from 3.1.1976 as aresult of the Constitution 42nd Amendment Act of WA.315/12 & CONNECTED CASES321976. The present Entry 25 in the Concurrent List is asfollows:" 25. Education, including technical education,medical education and universities, subject to theprovisions of entries 63, 64, 65 and 66of List I:vocational and technical training of labour."Entry 25 is subject, inter alia, to Entry 66 of List-I.Entry 66 of List-I is as follows:-"66. Co-ordination and determination ofstandards in institutions for higher education orresearch and scientific and technical institutions."Both the Union as well as the States have the power tolegislate on education including medical education,subject, inter alia, to Entry 66 of List-I which deals withlaying down standards in institutions for highereducation or research and scientific and technicalinstitutions asalso co-ordination of such standards. AState has, therefore, the right to control educationincluding medical education so long as the field is notoccupied by any Union Legislation. Secondly, the Statecannot, while controlling education in the State,impinge on standards in institutions for highereducation. Because this is exclusively within the WA.315/12 & CONNECTED CASES33purview of the Union Government. Therefore, whileprescribing the criteria for admission to the institutionsfor higher education including higher medicaleducation, the State cannot adversely affect thestandards laid down by the Union of India under Entry66 of List-I. Secondly, while considering the cases onthe subject it is also necessary to remember that from1977 education including, inter alia, medical anduniversity education, is now in the Concurrent List sothat the Union can legislate on admission criteria also.If it does so, the State will not be able to legislatein this field, except as provided in Article 254.36. It would not be correct to say that thenorms for admission have no connection with thestandard of education, or that the rules for admissionare covered only by Entry 25 of List III. Norms ofadmission can have a direct impact on the standardsof education. Of course, there can be rules foradmission which are consistent with or do not affectadversely the standards of education prescribed by theUnion in exercise of powers under Entry 66 of List-I.For example, a State may, for admission to the post-graduate medical courses, lay down qualifications inaddition to those prescribed under Entry 66 of List-I.This would be consistent with promoting higherstandards for admission to the higher educational WA.315/12 & CONNECTED CASES34courses. But any lowering of the norms laid downcan, and do have an adverse effect on the standards ofeducation in the institutes of higher education.Standardsof education in an institution or collegedepend on various factors. Some of these are:(1)The calibre of the teaching staff; (2) A proper syllabus designed to achieve a high level ofeducation in the given span of time; (3)The student-teacher ratio;(4) The ratio between the students and the hospitalbedsavailable to each student;(5) The calibre of the students admitted to the institution;(6)Equipment and laboratory facilities, or hospital facilitiesfor training in the case of medical colleges;(7) Adequate accommodation for the college and theattached hospital; and (8)The standard of examinations held including the mannerin which the papers are set and examined and the clinicalperformance is judged. WA.315/12 & CONNECTED CASES3538. The respondents rely upon someobservations in some of the judgments of this Court insupport of their stand that it is for the State to laydown the rules and norms for admission; and thatthese do not have any bearing on the standard ofeducation. In P. Rajendran v. State of Madras & Ors.([1968] 2 SCR 786), a Constitution Bench ofthisCourt considered the validity under Articles 14 and 15(1), of district- wise reservations made for seats in themedical colleges. Inthat case, the Act in questionprescribed eligibility and qualifications of candidatesfor admission to the medical colleges. The Courtobserved, "So far as admission is concerned, it has to bemade by those who are in control of the colleges - inthis case, the Government. Because the medicalcolleges are Government colleges affiliated to theuniversity. In these circumstances, the Governmentwas entitled to frame rules for admission to medicalcolleges controlled by it, subject to the rules of theuniversity as to eligibility and qualifications.Thiswas what was done in these cases and, therefore,the selection cannot be challenged on the ground thatit was not in accordance with the University Act andthe rules framed thereunder." This Court, therefore, upheld the additional criteria WA.315/12 & CONNECTED CASES36framed by the State for admission which were notinconsistent with the norms for admission laid down by the University Act. Since these additionalqualifications did not diminish the eligibility normsunder the University Act, this Court upheld theadditional criteria laid down by the state as notaffecting the standards laid down by the UniversityAct. The question of diluting the standards laid down,did not arise.”24. Per majority, the Hon’ble Apex Court held that therecannot be any compromise so far as the merit is concerned butan expert body like MCI can evolve a method of differentqualifying marks for different groups provided there is no bigdisparity in the qualifying marks. Ultimately, the selection has tobe based on merit. At paragraphs 31 & 32 their Lordships referto standard of education and why there should not be bigdisparity of qualifying marks between the two groups whichreads as under:“31. A large differentiation in the qualifying marksbetween the two groups of students would make itvery difficult to maintain the requisite standard ofteaching and training at the postgraduate level. Anygood teaching institution has to take into account the WA.315/12 & CONNECTED CASES37calibre of its students and their existing level ofknowledge and skills if it is to teach effectively andhigher courses. If there are a number of students whohave noticeably lower skills and knowledge, thestandard of education will not be able to benefit fromor assimilate higher levels of teaching, resulting infrustration and failures. It would also result in awastage of opportunities for specilalised training andknowledge which are by their very nature, limited. 32. It is, therefore, wrong to say that the standardof education is not affected by admitting students withlow qualifying marks, or that the standard of educationis affected only by those factors which come into playafter the students are admitted. Nor will passing acommon final examination guarantee a good standardof knowledge. There is a great deal of difference in theknowledge and skills of those passing with a highpercentage of marks and those passing with a lowpercentage of marks. The reserved category ofstudents who are chosen for higher levels of universityeducation must be in a position to benefit and improvetheir skills and knowledge and bring it to a levelcomparable with the general group, so that when theyemerge with specialised knowledge andqualificatio0ns, they are able to function efficientlyspecailised knowledge and qualifications, they are able WA.315/12 & CONNECTED CASES38to function efficiently in the public interest. Providingfor 20% marks as qualifying marks for the reservedcategory of candidates and 45% marks for the generalcategory of candidates, therefore, is contrary to themandate of Article 15(4). It is for the Medical Councilof India to prescribe any special qualifying marks forthe admission of the reserved category candidates tothe postgraduate medical course. However, thedifference in the qualifying marks should be at leastthe same as for admission to the undergraduatemedical courses, it not less.” Subsequently, in the case of STATE OF M.P. AND OTHERSVersus GOPAL D. TIRTHANI AND OTHERS (2003) 7 SCC 83by referring to DR. PREETI’s case their Lordships at paras 18 &19 referred to several issues which are relevant for the purposeof considering the present case. Paras 18 & 19 read as under:“18. It would be useful to crystallise as issues thequestions of law which arise for decision in theseappeals and around which the learned counsel for theparties have made their submissions. They are:-(1) Whether it is permissible to hold and conductseparate entrance examinations for in-service and WA.315/12 & CONNECTED CASES39open category candidates, or should there be only onecommon entrance test?(2) whether it is permissible to compartmentalize theevaluation of performance of in-service candidatesby assigning 40 marks for entrance test, 30 marksfor integrated performance at the first, second andthird MBBS examination and 30 marks based onlength of service in the rural/tribal areas?(3) whether weightage can be given for the length ofservice in the rural/tribal areas, and if so, in whatmanner?and(4) whether women candidates who have served forthree consecutive years in rural areas constitute aclass by themselves so as to deserve specialtreatment?Nature of 20% seats allocated for in-servicecandidates - reservation or channel of entry?19. The controversy in the present litigation doesnot concern the open category candidates; it isconfined to in-service candidates. We, therefore,propose to preface our discussion by determining thenature of 20% seats allocated to in-service candidates- whether it is by way of reservation or quota or is a WA.315/12 & CONNECTED CASES40channel of entry. Our task stands simplified by the lawlaid down by a three-Judge Bench decision of this Courtrecently in K. Duraiswamy and Anr. v. State of TamilNadu and Ors. . The question arose for decision inalmost a similar factual background. The seats were atthe State level and not all-India quota seats. The StateGovernment had allocated 50% of the seatsexclusively for in-service candidates and left theremaining 50% seats as open quota, i.e., to be filled infrom out of such candidates as were not in StateGovernment service. The classification was made as'service quota' and 'open quota', for in-servicecandidates and other candidates respectively,confining the respective class/cadre candidates to therespective percentages earmarked for the two of themexclusively. The Court held:-(i) the Government possesses the right andauthority to decide from what sources the admissionsin educational institutions or to particular disciplinesand courses therein have to be made and that too inwhat proportion;(ii) that such allocation of seats in the form offixation of quota is not to be equated with the usualform of communal reservation and, therefore, theconstitutional and legal considerations relevant to WA.315/12 & CONNECTED CASES41communal reservations are out of place whiledeciding the case based on such allocation of seats;(iii) that such exclusive allocation and stipulationof a definite quota or number of seats between in-service and non-service or private candidatesprovided two separate channels of entry and acandidate belonging to one exclusive quota cannotclaim to steal a march into another exclusive quotaby advancing a claim based on merit. Inter se meritof the candidates in each quota shall be determinedbased on the merit performance of the candidatesbelonging to that quota;(iv) that the mere use of the word reservation'per se is not decisive of the nature of allocation.Whether it is a reservation or an allocation of seats forthe purpose of providing two separate and exclusivesources of entry would depend on the purpose andobject with which the expression has been used andthat would be determinative of the meaning, contentand purport of the expression. Where the schemeenvisages not a mere reservation but is one of theclassification of the sources from which admissionsare to be accorded, fixation of respective quota forsuch classified groups does not attract applicability ofconsiderations relevant to reservation simplicitor. WA.315/12 & CONNECTED CASES42K. Doraiswamy's case (supra) was consideredand explained by another three-Judge Bench of thisCourt in AIIMS Students' Union v. AIIMS and Ors., . Thefollowing observation is appropriate and apposite forthe purpose of the case at hand and is, therefore,extracted and reproduced hereunder. The Court wasconsidering the question of allocation of seatsbetween in-service and open category candidates, thecandidates in both the categories being medicalgraduates, and not a reservation in favour of weakersection of the society or those who deserve or need tobe affirmatively discriminated. The Court then said--"Some of them had done graduation sometimein the past and were either picked up in thegovernment service or had sought for joininggovernment service because, maybe, they could notget a seat in post graduation and thereby continuetheir studies because of shortage of seats in higherlevel of studies. On account of their having remainedoccupied with their service obligations, they becamedetached or distanced from theoretical studies andtherefore could not have done so well as to effectivelycompete with fresh medical graduates at the PGentrance examination. Permitting in-servicecandidates to do post graduation by opening aseparate channel for admittance would enable theircontinuance in government service after post WA.315/12 & CONNECTED CASES43graduation which would enrich health services of thenation. Candidates in open category having qualifiedin post graduation may not necessarily feel attractedto public services. Providing two sources of entry atthe post graduation level in a certain proportionbetween in-service candidates and otherwisecandidates thus achieves the laudable object ofmaking available better doctors both in public sectorand as private practitioners. The object sought to beachieved is to benefit two segments of the samesociety by enriching both at the end and not so muchas to provide protection and encouragement to one atthe entry level."25. The Court while referring to K. DURAISWAMY V.STATE OF T.N. (2001) 2 SCC 538 and AIIMS STUDENTS’UNION v. AIIMS. (2002) 1 SCC 428 referred to the relevantparagraphs of those decisions wherein their Lordships held thatthe object sought to be achieved is to benefit two segments ofthe same society by enriching both at the end and not so muchas to pr0ovide protection and encouragement to one at theentry level. At para 22 they refer to the necessity to haveCommon Entrance Test, i.e. only one test and why it is a must,which reads as under: WA.315/12 & CONNECTED CASES44“Whether common entrance test - one only - is amust?22. Now, arises the crucial question - whether itis permissible to hold and conduct separate entranceexaminations for the two categories of candidates orshould there by only one common entrance test? It issubmitted on behalf of the in-service candidates thathaving done graduation and having then entered intogovernment service, they are detached fromtheoretical studies and, therefore, it would be toomuch to expect from them such theoretical knowledgeof medical science as would enable them to competewith fresh medical graduates taking up pre-PG test andto qualify for entry into post-graduate courses. It wasforcefully submitted that two separate examinationsshould be held for the two groups and that would notprejudice the open category candidates inasmuch asthe two channels being separate and exclusive, theassessment of merit of any one group would not affectthe assessment of merit of the candidates in the othergroup. We cannot accept such a submission.”26. At para 23 while referring to DR. PREETI’s case theirLordships referred to other decisions of the Apex Court i.e. K.L.NARASIMHAN; AJAY KUMAR SINGH and NIVEDITA JAIN’scases wherein it was stated that the assemblage of students in a WA.315/12 & CONNECTED CASES45particular class should be within a reasonable range of variablecaliber and intelligence, else the students will not be able to movealong with each other as a common class. Hence, the need for acommon entrance test and minimum qualifying marks asdetermined by experts in the field of medical education wasabsolutely necessary. Para 25 of this decision is also relevantwhich reads as under:24. The eligibility test, called the entrance test orthe pre-PG test, is conducted with dual purposes.Firstly, it is held with the object of assessing theknowledge and intelligence quotient of a candidatewhether he would be able to prosecute post-graduatestudies if allowed an opportunity of doing so; secondly,it is for the purpose of assessing the merit inter se ofthe candidates which is of vital significance at thecounselling when it comes to allotting the successfulcandidates to different disciplines wherein the seatsare limited and some disciplines are considered to bemore creamy and are more coveted than the others.The concept of a minimum qualifying percentagecannot, therefore, be given a complete go by. If at allthere can be departure, that has to be minimal andthat too only by approval of experts in the field ofmedical education, which for the present are availableas a body in the Medical Council of India. WA.315/12 & CONNECTED CASES46Ultimately, at para 36 they sum up as under:“Conclusions36. We sum up our conclusions as under:-1. In the State of Madhya Pradesh allocation of 20%seats in post graduation in the Universities of MadhyaPradesh for in-service candidates is not a reservation;it is a separate and exclusive channel of entry orsource of admission, the validity whereof cannot bedetermined on the constitutional principles applicableto communal reservations. Such two channels of entryor two sources of admission is a valid provision.2. There can be only one common entrance testfor determining eligibility for post graduation. Therequirement of minimum qualifying marks cannot belowered or relaxed contrary to Medical Council of IndiaRegulations framed in this behalf.3. In the State of Madhya Pradesh there are fiveuniversities, i.e. there are universities more than one.Regulation 9(2)(iii) cannot be made use of in the Stateof Madhya Pradesh either singly or in combination withClause (i) for determining the eligibility for entranceinto PG courses.4. It is permissible to assign a reasonable WA.315/12 & CONNECTED CASES47weightage for service rendered in rural/tribal areas byin-service candidates for the purpose of determininginter se merit within the class of in-service candidateswho have qualified in the Pre-PG test by securing theminimum qualifying marks as prescribed by theMedical Council of India.5. Women candidates constitute a class bythemselves and the provision of relaxed or reducedeligibility criteria by reference to continuous servicerendered in rural areas for the purpose of sponsorshipby the State Government in specified disciplines whichhave utility for serving women folk in villages does notsuffer from the vice of invidious discrimination.”27. There is another important case viz. HARISH VERMAAND OTHERS Versus AJAY SRIVASTAVA AND ANOTHER(2003) 8 SCC 69). This was with reference to Regulation 9 ofthe Postgraduate Medical Education Regulations, 2000. TheirLordships held that the Full Bench of the High Court should nothave relied on the dissenting opinion of one Judge in DR. PREETISRIVASTAVA’s case by overlooking the majority opinion. It isthe law laid down by the Constitutional Bench that is havingbinding force. Paras 5 & 21 are relevant which read as under: WA.315/12 & CONNECTED CASES48“5. On 29.4.2002 several in-service doctors (i.e.the graduate doctors who were serving under the Stateof Rajasthan) filed a writ petition laying challenge tothe constitutional validity of the first proviso toRegulation 9 and seeking its being declared ultra viresin its applicability to in-service candidates. In thealternative, it was prayed that the first provisoabovesaid be declared as inapplicable insofar the seatsmeant for in-service candidates in postgraduatemedical courses are concerned. Consistently with suchdeclaration it was prayed that the result be declaredafresh and that the In-service candidates be declaredto have qualified for entrance in PG degree/diplomacourses without insisting on the prescribed minimumqualifying marks. Several such writ petitions were filed.It is significant to note that the writ-petitioners beforethe High Court were all such doctors who were servingin the State services and who had participated in thepre-PG examination but had failed in securing theminimum qualifying marks as prescribed by the firstproviso to Regulation 9 and the notification dated 2ndMarch, 2002. The High Court issued rule nisi and alsopassed an interim order to the effect that the unfilledseats in the in-service category shall be kept vacantduring the pendency of the proceedings.21. As a consequence, the admissions given tosuch of the in-service candidates who have secured WA.315/12 & CONNECTED CASES49marks less than the minimum prescribed by Regulation9 framed by the Medical Council of India are struckdown and set aside. The counseling shall have to bedone afresh to the extent necessary. We are consciousof the fact that there would be some delay incommencement of post-graduation studies and tosome extent the 2002 and 2003 batches wouldoverlap. However, that is a situation which cannot beavoided. It is an inevitable consequence for which thesuccessful candidates for the year 2002 and 2003, i.e.those who will be held entitled for admission in post-graduation courses of studies consequent upon thisjudgment, cannot be made to suffer for no fault oftheirs. It will be for the State of Rajasthan, if necessarythen in consultation with the Medical Council of India,to sort out the difficulties and to run the regularcourses of the studies.”28. Learned Advocate General relied upon Pre-PG MedicalSanghos Committee v. Dr.Bajrang Soni & others (2001) 8SCC 694. . In this case when the question with regard to increaseof reservation of seats came up for consideration, their Lordshipsheld that if the increase of reservation of seats is reasonable andhas sufficient nexus with the larger goal of equalisationof opportunities no discrimination or arbitrarinessis involved in the special provisions meant to WA.315/12 & CONNECTED CASES50meet a just and appropriate need. However, in the public interestsuch approach was held as violative of Articles 14 & 15.29. In (2001) 8 SCC 664 STATE OF PUNJAB v. DAYANANDMEDICAL COLLEGE AND HOSPITAL AND OTHERS the questionthat arose was whether the Government could prescribe minimumqualifying marks? It was held that the marks prescribed by MCIin terms of Entry 66 of List I Seventh schedule cannot beunilaterally diluted by Government or University. It was furtherheld even in case of difficulty, Government ought to approachMedical Council for making appropriate changes. In the said casethe move of the State of Punjab lowering minimum qualifyingmarks to 40% for speciality subjects and doing away with themaltogether for basic subjects was held to be contrary toregulations of MCI. While opining positively regardingreservations for socially and economically backward classes theirLordships held balance must be struck by State and MCI inexercising their respective powers. It was held that MCI – astatutory body cannot impinge upon constitutional powers of theState nor can it prescribe standards which would be impossiblefor a reserved category candidate or even a general categorycandidate to achieve. WA.315/12 & CONNECTED CASES5130. We also place reliance on (2011) 8 SCC 441 P.V.INDIRESAN (2) Versus UNION OF INDIA AND OTHERS.Bench referred to ASHOKA KUMAR THAKUR v. UNION OFINDIA (2008) 6 SCC 1. In the said case the Judges wereconcerned with the standards of excellence in higher educationand in the said case consideration was with regard to the factthat OBC’s were far better placed economically and socially thanSC & ST and therefore, the minimum percentage of marks forOBC’s has to be somewhere between minimum marks for SC STand minimum marks for general category candidates. Ultimately,their Lordships held that cut-off marks of OBC’s are to becomputed with respect to minimum eligibility marks for thecourse concerned or qualifying in entrance examinationconcerned and not with respect to marks secured by lastcandidate admitted under general category. It was further heldthat eligible criteria cannot be changed after admission processhas commenced. Their Lordships held that eligibility marks andqualifying marks are pre-determined and notified in admissionProspectus so that a candidate intending to apply for admissionwould know what eligibility marks he should possess in qualifying WA.315/12 & CONNECTED CASES52examination or what qualifying marks he should secure if there isentrance examination. It was further held that a factor which isneither known nor ascertained at the time of declaring admissionprogramme cannot be used to disentitle a candidate to admission,who is otherwise entitled for admission. 31. We also refer to 2003 (3) ILR 46 Kerala series DR.JAYAKUMAR, E.K. v. DIRECTOR OF MEDICAL EDUCATIONAND OTHERS – where Prospectus refer to reservation of seatsfor lecturers in certain subjects. Lecturers in nuclear medicinewere not included but later Government on directions from theHigh Court included lecturers in nuclear medicine also in 2001.32. A similar clause like Cl. XIX of the present ProspectusEx. P-1 was the subject matter before their Lordships. The clausewas XVIII of the Prospectus for the year 2002. In the said caseProspectus for the year 2002 was issued on 26.6.2001 and thelast date for submission of application was 30.11.2001. ClauseXVIII of the Prospectus came to be amended after the last date forsubmission of the application. Their Lordships disapproved thesaid move and held that at least on the last date for submission ofthe application the candidate should know definitely the criteriafor eligibility for admission to the course. If criteria for eligibility WA.315/12 & CONNECTED CASES53for admission after the last date for submission of the applicationwas done, it would lead to arbitrary exercise of power to favour orto prejudice particular candidates depending on the whims andfancies of the authorities concerned. It was further held that toprovide equal opportunity to the candidates, to maintain fairnessand to avoid arbitrariness in the matter of selection of candidates,it is absolutely necessary that the criterion for eligibility foradmission to the course is not changed after the last date forsubmission of applications.33. (2008) 7 SCC 11) in the case of Himani Malhotra v.High Court of Delhi is also relied upon. In this case, during thependency of recruitment Process Rules, the rules came to bechanged. Their Lordships held that initially when the minimummarks for the written test were prescribed and not for viva voce,later fixation of minimum marks for the viva voce after writtentest was over, was improper and erroneous.34. In Manjusree v. State of A.P (2008) 3 SCC 512 theirLordships held that during pendency of recruitment processcriteria for selection by scaling down of marks was unjust andheld that such criterion has to be prescribed in advance, and rulesof the game cannot be changed afterwards. WA.315/12 & CONNECTED CASES5435. We also refer to 2009 (4) ILR Kerala series 543 inthe case of ASHA P. v. STATE OF KERALA AND OTHERS. Inthis case their Lordships held that the rules that were in forceregarding qualification for the appointment as District Judge hasto be the rule which was in force as on the date of issuance ofnotification. In other words, change subsequent to thenotification cannot be taken into consideration as special rule wasmade by virtue of amendment and is prospective.36. With the assistance of the law laid down by the ApexCourt and High Courts as stated above, one has to see whetherEx. P-3 deserves to be quashed. 37. The regulations framed by the MCI under section 33 withthe prior approval of the Central Government are statutory innature. This is the law declared by the Apex Court in the case ofMCI vs. STATE OF KARNATAKA and so also in the case of Dr.PREETI SRIVASTAVA. In more than one case, the Apex Courthas opined, medical students require intensive gruelling asdoctors have to be competent enough when they come out ofcollege and they are expected to be perfect in the science oftreatment of human beings as the country does not want halfbaked medical professionals coming out of medical colleges. The WA.315/12 & CONNECTED CASES55standard of education prescribed by MCI cannot be diluted so faras admission to post graduate degree / diploma course. 50% ofqualifying marks is still required to be obtained both by in-servicecandidates and also open quota candidates. If standard ofexcellence has to be maintained by prescribing 50% minimumqualifying marks for all the candidates irrespective of whichchannel they come from, whether direct quota candidates or in-service quota candidates, can there be difference in ascertainingstandard of excellence. As already stated above, as contendedby the learned counsel for the MCI, an expert body like MCI cancreate disparity so far as qualifying marks in between opencategory candidates and reserved quota candidates but the saiddisparity cannot be a big gap. Ultimately the candidates comingfrom these two different channels must be able to render qualityservice while rendering medical treatment to the public at large.To secure 50% minimum qualifying marks, common EntranceExamination is prescribed. It is also well settled that CommonEntrance Examination cannot be discarded. The purpose ofhaving Common Entrance Test is to ascertain the intellectualquotient of the students to withstand the gruelling of students atpost graduate level. The entrance test is only one level below the WA.315/12 & CONNECTED CASES56actual medical training as held in DR. PREETI SRIVATSAVA’Scase. To assess and ascertain the intellectual quotient of thestudents, the only process or method of assessment is commonEntrance Examination.38. According to the 1st respondent State, the withdrawal ofqualifying marks is permissible in the light of observations of theApex Court and such exercise was only with a view to make in-service candidates acquainted with higher academic qualificationso as to post them in the rural areas by taking a bond for 10years. We also note that one year bond is also taken fromgeneral candidates. If negative mark was to assess the capabilityof candidates, if standard of excellence is to be maintained, onehas to again look into the capabilities of candidates who have tobe given medical training at post graduate level. If the in-servicecandidates are incapable of reaching the standard, i.e. to acquireminimum qualifying marks, on account of lapse of considerabletime from the date of their graduation, would it be possible forthem to acquire higher and specialised training in medical field ifthey are not capable of getting minimum qualifying marks?39. Then coming to the question of change of Prospectus,the learned Government Advocate relies upon AIR 1997 Ker. WA.315/12 & CONNECTED CASES57218 – RELLY SUSAN MATHEW v. CONTROLLER OFENTRANCE EXAMINATIONS, TRIVANDRUM AND OTHERS.According to the learned Government Advocate, having regard tothe general clause 19 in the Prospectus, the Government is atliberty to change the terms and conditions of the Prospectus atany time. As per original Prospectus Ex.P-1, there was negativemarking for erroneous responses both to open quota candidatesand in-service quota candidates. By virtue of Ex.P-3 this waswithdrawn so far as in-service candidates. No one can have asecond opinion that candidate does not get any right to getadmission on the basis of the Prospectus. 40. Reading of clause XIX shows that the Prospectus issubject to modification / addition as may be considered necessaryby the Government and issued as executive orders / notification.There is no statutory force so far as the Prospectus is concerned.The Government cannot say because of Clause XIX they have aright to change the rules of the game at any time they want.Even if we presume the Government has power to modify or addto the Prospectus, such action must be a reasonable one withoutany arbitrariness and it should not suffer from discrimination. Asalready stated above, though the Prospectus was issued WA.315/12 & CONNECTED CASES58somewhere in December, 2011, till a day before the examinationthere was no move on the part of the Government to withdrawnegative marking for in-service candidates. Everyone concernedmust have been taken aback with such sudden decision includingsome of the in-service quota candidates. Anything sansreasonableness and statutory force cannot be approved.Therefore, the argument of the learned Advocate General thatClause XIX empowers withdrawal cannot be accepted. (Our viewis supported in earlier decision (2003 (3) ILR KERALA SERIES).41. The very object of selection process is to identifycandidates capable of pursuing intensive medical training at postgraduate level. Relaxation of negative marking now conceivedunder Ex.P-3 cannot be approved as laudable policy of theGovernment because no positive results can be achieved if laxitycreeps in the assessment of the merit of the candidates. If onlynegative marking is uniformly applied to all the candidates, thenonly the suitability of the candidate can be said with certainty.Therefore, there cannot be any protection and vast disparity atthe entry level. When the need for common entrance test andminimum qualifying marks is absolutely necessary in order toachieve uniformity with reasonable variance in the assemblage of WA.315/12 & CONNECTED CASES59students so far as merit is concerned, the negative markingcannot be allowed. The number of seats allocated to in-servicecandidates if remains unfilled, they are diverted to open categorycandidates.42. The merit in the rank list is to allot more creamy andcoveted disciplines to more meritorious candidates. This merit ofthe candidate is to be ascertained by his performance in theCommon Entrance Test. If assessment norms for evaluating themerit of the candidates is different not only the open category butalso in-service candidates would be affected. Though there canbe intelligible differentia which distinguish persons from theexcluded group, but there is no rationale to the object sought tobe achieved in the present process. 43. The stand of the State is, dearth of specilised doctorshas compelled them to make such move. If the MCI has power toprescribe minimum qualifying marks as determined by experts inthe field of medical education, the path or the route i.e. theevaluation process to assess minimum qualifying marks cannot bedifferent. The State or University cannot deviate or meddle withthe standard fixed by MCI, when the State and Universities arenot entitled to deal with lowering of qualifying marks, equally they WA.315/12 & CONNECTED CASES60are not entitled to deal with the process of assessment orevaluation of merit between two groups of candidates. If at allsuch a move has to be done, the expert body like MCI has to beconsulted which is apparently absent in the present case. 44. If the Government intends to give weightage to thecandidates who work in rural areas, etc. among the in-servicecandidates inter-se, such weightage can be given. In the absenceof uniform criterion, i.e. common yardstick to ascertain the meritof the candidates, definitely one has to opine the action of theState in issuing Ex. P-3 as arbitrary and violative of Article 14.There is hostile discrimination between the two groups of similarlyplaced candidates. Though Apex Court has no doubt said thatlowering of qualifying marks without big disparity is permissibleprovided expert body like MCI approves, there is no regulation,rule, provision which indicates that there can be differentapproach to ascertain the ability of the candidates. Withdrawal ofnegative marking to one group of candidates is nothing butdiscrimination against another group of candidates. In the light ofabove observations, we are of the opinion, the writ petitions andthe appeal deserves to be allowed. WA.315/12 & CONNECTED CASES61In the result, the writ petitions and the appeal standallowed. Ex. P-3 dated 18.2.2012 is quashed. The respondentauthorities are directed to proceed with the preparation of ranklist based on the evaluation as contemplated under Ex. P-1Prospectus. MANJULA CHELLUR, ACTING CHIEF JUSTICE V.CHITAMBARESH, JUDGE