CHOWDHURY NAVIN HEMABHAI Vs STATE OF GUJARAT .
Bench: R.V. RAVEENDRAN,A.K. PATNAIK, , ,
Case number: C.A. No.-001925-001925 / 2011
Diary number: 32712 / 2009
Advocates: A. VENAYAGAM BALAN Vs
AMIT KUMAR
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1925 OF 2011 (Arising out of S.L.P. (C) No. 29216 of 2009)
Chowdhury Navin Hemabhai & Ors. …… Appellants
Versus
The State of Gujarat & Ors. …… Respondents
JUDGMENT
A. K. PATNAIK, J.
Leave granted.
2. The appellants belong to Scheduled Castes, Scheduled
Tribes and Socially and Educationally Backward Classes and
they have in this Civil Appeal challenged the judgment of the
Division Bench of the High Court of Gujarat in Special Civil
Application No. 9526 of 2009, refusing to quash the
communication of the Medical Council of India for discharging
them from the MBBS course to which they had been admitted.
3. The facts briefly are that the Medical Council of India (for
short “the MCI”) prescribed inter alia in its regulations called
“The Regulations on Graduate Medical Education, 1997” (for
short “the MCI Regulations”) that candidates belonging to
Scheduled Castes, Scheduled Tribes and Other Backward
Classes must have obtained a minimum of 40% marks
together in Physics, Chemistry and Biology at the qualifying
examination and, in addition, 40% marks in Physics,
Chemistry and Biology taken together in the competitive
examination for admission to the MBBS course. The State
Government of Gujarat also made rules under the Gujarat
Professional Medical Educational Colleges or Institutions
(Regulation of Admission and Fixation of Fees) Act, 2007 called
“The Gujarat Professional Medical Educational Colleges or
Institutions (Regulation of Admission and Payment of Fees)
Rules, 2008” (for short “the State Rules, 2008”). Rule 5 (1) (iv)
of the State Rules, 2008 provided that for admission to a
professional college, a candidate must have passed the
qualifying examination and must have appeared in the
common entrance test of Gujarat. A notification was issued by
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the State Government under Rule 12 of the State Rules, 2008
prescribing the minimum marks in the qualifying examination
for admission to MBBS course for Scheduled Castes,
Scheduled Tribes and Socially and Educationally Backward
Classes (excluding Creamy layer) candidates as 40% in
Physics, Chemistry and Biology.
4. The appellants had secured 40% marks in the qualifying
examination in Physics, Chemistry and Biology as prescribed
in the notification issued under Section 12 of the State Rules,
2008. The appellants also appeared in the common entrance
test conducted for Gujarat for 2008-2009, but secured less
than 40% marks in Physics, Chemistry and Biology in the
common entrance test. As the appellants were placed in the
merit list in the common entrance test, they were admitted to
the MBBS course in Pramukhswami Medical College,
Karamsad (for short “the College”). After collecting information
from the College, the MCI sent a communication dated
10.02.2009 to the College to discharge the seven appellants
and one more student as they had secured less than 40%
marks in Physics, Chemistry and Biology in the common
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entrance test and were not eligible for admission in the MBBS
course as per the MCI Regulations. The College entered into
some correspondence with the MCI and the Admission
Committee of the State Government and on 01.07.2009
cancelled the admission of the appellants on the insistence of
the MCI in its letter dated 27.03.2009. The State Government
addressed a communication to the MCI saying that the
students were admitted in accordance with the State Rules,
2008 as per their merit and they may be allowed to pursue the
medical education as they were not at fault. On the request of
the appellants, the College permitted the appellants to appear
in the preliminary examination for First MBBS in July 2009
subject to the final decision of the MCI.
5. The appellants then moved the High Court under Article
226 of the Constitution in Special Civil Application No.9526 of
2009 and by the impugned judgment, the Division Bench of
the High Court dismissed the Writ Petition. The High Court
held that Clause 5.5 (ii) of the MCI Regulations specifically
stipulated that candidates belonging to Scheduled Castes,
Scheduled Tribes or Other Backward Classes must have
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obtained a minimum of 40% marks in Physics, Chemistry and
Biology taken together in the qualifying examination and, in
addition, must have come in the merit list prepared as a result
of the competitive entrance examination by securing not less
than 40% marks in Physics, Chemistry and Biology in the
competitive entrance test and as the appellants have not
satisfied this mandatory stipulation under clause 5.5 (ii) of the
MCI Regulations, there was no illegality in the directions given
by the MCI to discharge the appellants from the college. The
High Court also struck down Rule 5(1)(iv) of the State Rules,
2008 which provided that a candidate who appeared in the
Gujarat common entrance test was eligible for admission to
the MBBS course even if he obtained less than 40% marks in
Physics, Chemistry and Biology taken together in the common
entrance test.
6. Mr. K.V. Vishwanathan, learned Senior Counsel for the
appellants, submitted that the High Court erred in upholding
the directions of the MCI to discharge the appellants who had
been validly admitted under the State Rules, 2008 and the
validity of the State Rules, 2008 was not under challenge
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before the High Court. He submitted that rule 5 (1) (iv) of the
State Rules, 2008 had been framed by the State Government
of Gujarat in exercise of its powers under Section 20(1) read
with Section (4) of the Gujarat Professional Medical
Educational Colleges or Institutions (Regulation of Admission
and Fixation of Fees) Act, 2007 and it clearly provides that a
candidate who had passed the qualifying examination and
appeared in the Gujarat common entrance test conducted in
the current academic year was eligible for admission to the
MBBS course. He submitted that as the appellants had not
only passed the qualifying examination, but also appeared in
the common entrance test for the academic year 2008-2009
they were clearly eligible for admission to the college for the
MBBS course. He submitted that although rule 5 (1) (iv) of the
State Rules, 2008 was not under challenge, the High Court
struck down the rule as invalid in the impugned judgment
merely because the clause 5.5 (ii) of the MCI Regulations
prescribed that a candidate has to obtain 40% marks in
Physics, Chemistry and Biology taken together in the
competitive entrance examination on the basis of which the
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candidates were to be admitted and the appellants have not
secured such 40% marks in the competitive entrance
examination. He submitted that the mistake in making the
State Rules, 2008 consistent with the MCI Regulations was of
the State Government and not of the candidates, who have
been admitted to the MBBS course in accordance with the
State Rules, 2008 and therefore the appellants should not be
made to suffer for such mistake of the rule making authority.
He submitted that this Court had adopted a sympathetic
approach in similar situations where admissions of students
were in jeopardy for none of their fault in Rajendra Prasad
Mathur v. Karnataka University and Anr. [1986 (Supp) SCC
740], A. Sudha v. University of Mysore [(1987) 4 SCC 537],
Ashok Chand Singhvi v. University of Jodhpur and others
[(1989) 1 SCC 399] and M.A. Salam (II) v. Principal Secretary,
Government of A.P. and others [(2005) 13 SCC 677].
7. Mr. Amrendra Sharan, learned Senior Counsel appearing
for the MCI, on the other hand, supported the impugned
judgment of the High Court and submitted that for achieving
the purposes of the “Indian Medical Council Act, 1956”, the
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MCI has made the MCI Regulations which are statutory in
nature and unless the State Government and the Universities
cooperate with the MCI in enforcing these statutory
regulations, the MCI will not be able to discharge its statutory
obligations under the Act. He submitted that regulation 5.5 of
the MCI Regulations lays down the procedure for selection to
the MBBS course and clause 5.5 (ii) of these Regulations
clearly provides that in case of admission on the basis of
competitive entrance examination, a candidate belonging to
the Scheduled Castes, Scheduled Tribes and Other Backward
Classes must have secured a minimum of 40% marks taken
together in Physics, Chemistry and Biology of the qualifying
examination and, in addition, must have secured 40% marks
in these subjects in the competitive entrance examination. He
referred to the marks of the seven appellants and one more
student admitted to the college to show that none of them
fulfilled the eligibility criteria as mentioned in clause 5.5(ii) of
the MCI Regulations. He submitted that the MCI, therefore,
wrote to the Dean of the college in its letters dated 10.02.2009
and 27.03.2009 to discharge these eight students. He
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submitted that this Court had repeatedly held that the
regulations made by the MCI are statutory, mandatory and
binding in character and admissions to medical courses could
not be made in violation of the MCI regulations. He cited the
decision in Medical Council of India v. State of Karnataka and
others [(1998) 6 SCC 131] in which this Court has held that
the Indian Medical Council Act is relatable to Entry 66 of List I
(Union List) of the Seventh Schedule of the Constitution and
prevails over any State enactment to the extent that the State
enactment is repugnant to the provisions of the Act. He
submitted that the MCI Regulations will therefore prevail upon
the State Rules, 2008 and the contention on behalf of the
appellants that the appellants were admitted in accordance
with the State Rules, 2008 and their admissions are valid,
even though contrary to the MCI Regulations, has no force.
8. Mr. Maulik Nanavati, appearing for the State of Gujarat,
submitted that while making the State Rules, 2008, clause
5.5(ii) of the MCI Regulations was lost sight of and as a result
admissions in the academic year 2008-2009 to the MBBS
course in different colleges in the State of Gujarat were made
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only in accordance with the State Rules, 2008 and some
candidates who did not fulfill the eligibility criteria mentioned
in clause 5.5 (ii) of the MCI Regulations got admitted to the
MBBS course during the year 2008-2009. He submitted that
for the subsequent years, i.e. 2009-2010 onwards, the State
Government has provided in the Rules that students belonging
to the Scheduled Castes, Scheduled Tribes and Other
Backward Classes must obtain 40% marks in Physics,
Chemistry and Biology in the qualifying examination as well as
in the common entrance test for admission into the MBBS
course as prescribed in the MCI Regulations.
9. Clause 5.5(ii) of the MCI Regulations, which prescribes
the procedure for selection and admission to the MBBS course
on the basis of competitive entrance examination, reads as
under:
“(5) Procedure for selection to MBBS course be as follows:-
(ii) In case of admission on the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English
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individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in clause (2) of regulation 4 in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. In respect of candidates belonging to Schedule Castes, Schedule Tribes, or Other Backward Classes the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above:
Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course, he shall not be admitted to the course until he fulfills the eligibility criteria under regulation 4.”
It will be clear from a careful reading of this clause of the MCI
Regulations that candidates belonging to the Scheduled
Castes, Scheduled Tribes and Other Backward Classes must
have secured 40% marks in Physics, Chemistry and Biology
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taken together in both the qualifying examination and must
also secure 40% marks in the competitive entrance
examination on the basis of which admission to the MBBS
course is being made in a State.
10. The relevant provisions of Rule 5 and Rule 12 of the State
Rules, 2008 are quoted herein below:
“5 . Eligibility for Admission: (1) For the purpose of admission, a candidate shall have passed with “B-group” or “AB- group” the qualifying examination from, -
(i) the Gujarat Board; or
(ii) the Central Board of Secondary Education Board provided that the school in which the candidate has studied, should have been located in the State of Gujarat; or
(iii ) the Council of Indian School Certificate Examinations, New Delhi Board provided that the school in which the candidate has studied should have been located in the State of Gujarat; and (iv) appeared in the Gujarat Common Entrance Test conducted in the current academic year.
12. Minimum qualifying standard for admission: (1) No student shall be admitted in the professional medical education course unless he/she fulfills the
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eligibility criteria, including the minimum qualifying marks (standard).
(2) The minimum qualifying standard for admission shall be notified by the State Government by order in the Official Gazette from time to time.”
The notification issued by the State Government under rule 12
(2) notifying the minimum qualifying standards for admission
is extracted herein below:
“ORDER
Health and Family Welfare Department, Sachivalaya, Gandhinagar, Dated the 2nd June, 2008
No. MCG-1008-931-J:
In pursuance to the
power conferred by the
sub rule (2) of rule 12
of the Gujarat
Professional Medical
Educational Colleges or
Institutions (Regulation
of Admission and Payment of Fees)
Rules, 2008 the Government of
Gujarat here by notifies following
minimum qualifying standard for
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Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Payment of
admission to the first year of
professional medical educational
courses namely:-
Minimum aggregate marks of external
evaluation in theory subjects in qualifying
examination (Physics, Chemistry and Biology)
1. Medical and Dental Courses:
(a) for General Category Candidates 70%
(b) for Schedule Castes, Scheduled 40% Tribes, Socially & Educational
Backward Classes (Excluding Creamy layer) Candidates
2. For Ayurved/ Nursing/ Homeopathy/ Physiotherapy/ Optometry/ Naturopathy/ Orthotics/ Occupational Therapy Courses.
(a) for General Category Candidates 50%
(b) for Schedule Castes, Scheduled 40% Tribes, Socially & Educational Backward Classes (Excluding Creamy layer) Candidates
By the order and in the name of the Governor of Gujarat.
Sd/- (A.K. Bhatt)
Joint Secretary to the Government.”
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On a careful reading of the provisions of Rules 5 and 12 of the
State Rules, 2008 and the notification dated 02.06.2008 of the
State Government under Rule 12 (2) of the State Rules, 2008,
it will be clear that under the State Rules, 2008 candidates
belonging to the Scheduled Castes, Scheduled Tribes and
Socially and Educationally Backward Classes (excluding
Creamy Layer) eligible for admission to the MBBS course was
required to have 40% marks in the qualifying examination in
Physics, Chemistry and Biology and must have appeared in
the competitive entrance examination conducted in the
current academic year.
11. On a comparison of the minimum criteria for admission
to the MBBS course laid down in the MCI Regulations and the
State Rules 2008, we find that both the MCI Regulations and
State Rules, 2008 insist that a candidate must have obtained
40% marks in the Physics, Chemistry and Biology in the
qualifying examination. The only difference between the MCI
Regulations and the State Rules, 2008 is that while the MCI
Regulations require the candidates belonging to the Scheduled
Castes, Scheduled Tribes and Other Backward Classes to
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secure in the competitive entrance examination for admission
40% marks in the Physics, Chemistry and Biology taken
together, the State Rules, 2008 do not contain such a
requirement. But as the State Rules had prescribed a
qualification standard which was less than that of MCI, the
seven appellants, who took the Gujarat common entrance test
for the academic year 2008-2009, got selected on the basis of
their merit for the seats in the MBBS course reserved for the
Scheduled Castes, Scheduled Tribes and Other Backward
Classes and got admitted in the college even though they had
not secured 40% marks in Physics, Chemistry and Biology in
the Gujarat common entrance test. The qualification
requirements prescribed by the State cannot be lower than
those prescribed by the MCI. Therefore, in law, the order of
the High Court is right.
12. This is, however, a clear case where the admissions of the
seven appellants took place due to the fault of the rule-making
authority in not making the State Rules, 2008 in conformity of
the MCI Regulations. For this fault of the rule-making
authority if the appellants are discharged from the MBBS
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course, they will suffer grave injustice. On the peculiar facts
of the case, we are thus of the view that this is a fit case where
this Court should exercise its power under Article 142 of the
Constitution to do complete justice between parties. In Delhi
Judicial Service Association, Tis Hazari Court, Delhi v. State of
Gujarat and Others. [(1991) 4 SCC 406] after examining the
width of this power under Article 142 of the Constitution, this
Court held:
“No enactment made by Central or State legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the court must take into consideration the statutory provisions regulating the matter in dispute. What would be the need of “complete justice” in a cause or matter would depend upon the facts and circumstances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete justice in the matter. This has been the consistent view of this Court as would appear from the decisions of this Court in State of U.P. v. Poosu [(1976) 3 SCC 1], Ganga Bishan v. Jai Narain [(1986) 1 SCC 75], Navnit R. Kamani v. R.R. Kamani [(1988) 4 SCC 387], B.N. Nagarajan v. State of Mysore [(1966) 3 SCR 682], Special Reference No. 1 of 1964 [(1965)
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1 SCR 413, 499] and Harbans Singh v. State of U.P. [(1982) 2 SCC 101]. ”
13. In Sandeep Subhash Parate v. State of Maharashtra
[(2006) 7 SCC 501], this Court has also held that while
exercising its discretion and jurisdiction and to do complete
justice in terms of Article 142 of the Constitution, the Court
must consider all relevant aspects of the matter including the
decisions of this Court. In that case, the Court found that the
Sandeep Subhash Parate did not lack bona fides in getting
admission in the course of Bachelor of Engineering, Pune
University, in a seat reserved for Scheduled Castes, and
exercising its constitutional power under Article 142 of the
Constitution the Court held that his studies in the
professional course should not be disturbed as he might not
be entirely responsible for the admission in a reserved seat.
14. In the facts of the present case, we have found that the
appellants were not to be blamed for having secured
admission in the MBBS course and the fault was entirely of
the rule-making authority in making the 2008 Rules and the
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appellants have gone through the pains of appearing in the
common entrance test and have been selected on the basis of
their merit and admitted into the MBBS course in the college
in accordance with the State Rules, 2008 and have pursued
their studies for a year. Hence, even though under the MCI
Regulations the appellants were not eligible for admission to
the MBBS course in the academic year 2008-2009, for the
purpose of doing complete justice in the matter before us, we
direct that the admissions of the appellants to the MBBS
course in the college during the academic year 2008-2009 will
not be disturbed. This direction shall not, however, be treated
as a precedent. The appeal is disposed of accordingly with no
order as to costs.
……………………..J. (R.V. Raveendran)
……………………..J. (A. K. Patnaik) New Delhi, February 18, 2011.
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