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WP(C) 354/2011 & WA 35/2011

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,

MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)

[AGARTALA BENCH]

WP(C) No. 354/2011

Petitioners :

1. Shri Simmons Debbarma,

S/o Shri Samarendra Debbarma, Resident of Krishnanagar, near Weights & Measure Office, P.O. Agartala, P.S. West Agartala, District West Tripura,

2. Shri Jasckson Tripura,

S/o Shri Ditiram Tripura, Resident of Village & P.O. Fulcharri, P.S. Manubazar, Sabroom, Dist. South Tripura,

3. Shri Hawmchang Debbarma,

S/o Shri Prabir Debbarma, Resident of Harish Thakur Road, Krishnanagar, P.O. Agartala, P.S. West Agartala, Dist. West Tripura,

4. Shri Trijeshwar Debbarma

S/o Shri Sudhanaya Debbarma, Resident of Ujan Abhoynagar, P.O. Abhoynagar, P.S. East Agartala, Dist. West Tripura,

5. Ms. Juliet Debbarma,

D/o Shri Paritosh Debbarma, Resident of Ujan Abhoynagar, P.O. Abhoynagar, P.S. East Agartala, Dist. West Tripura,

6. Ms. Monalisha Debbarma,

D/o Shri Prabin Debbarma, Resident of village Khowai, P.O. & P.S. Khowai, Dist. West Tripura.

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WP(C) 354/2011 & WA 35/2011

By Advocates :

Mr. A. K. Bhowmik, Sr. Advocate. Mr. M. Debbarma, Mr. B. Bhattacharjee, Mr. R. Dutta, Ms. M. Choudhury,

- versus -

Respondents:

1. The State of Tripura,

Represented by the Secretary to the Government of Tripura, Department of Higher Education, New Secretariat, Capital Complex, P.O. Kunjaban, P.S. East Agartala, Dist. West Tripura,

2. The Director of Higher Education,

Old Secretariat Building, P.O. Agartala, P.S. West Tripura, Dist. West Tripura,

3. The Director of Health Services,

Government of Tripura, Gurkhabasti, P.O. Kunjaban, P.S. East Tripura, Dist. West Tripura,

4. The Medical Council of India,

Having its office at Aiwan-e-Ghalib Marg, Kotla Road, New Delhi-110002, Represented by its Secretary,

5. The Tripura Board of Joint Entrance Examination (Directorate of Higher Education),

3rd Floor, Building of Tripura Board of Secondary Education, Gurkhabasti, Agartala, PIN-799006,

Represented by its Chairman,

6. The Union of India,

Represented by its Secretary, Ministry of Health & Family Welfare, Government of India, New Delhi.

By Advocates: Mr. P. K. Biswas, Assistant Solicitor General of India. Ms. A. S. Lodh, Govt. Advocate, Ms. R. Guha, Advocate.

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WP(C) 354/2011 & WA 35/2011

WA No. 35/2011 [In WP(C) 337/2011]

Appellants :

1. Ms. Monali Debbarma,

D/o Shri Manoranjan Debbarma, Resident of Melarmath Govt. Qrtr. Type-II/31 P.O. Agartala, District West Tripura,

2. Shri Darneal Jamatia,

S/o Shri Debadhan Jamatia, Resident of Village & P.O. Chachubazar, P.S. Ompinagar, Amarpur, Dist. South Tripura,

3. Ms. Krishma Debbarma,

S/o Shri Amrit Debbarma, Resident of Krishnanagar, P.O. Agartala, P.S. West Agartala, Dist. West Tripura,

4. Ms. Catherine Halam,

D/o Shri John. N. Halam, Resident of Krishnanagar, Lake Chowmuhani, P.O. Agartala, P.S. West Agartala, Dist. West Tripura,

5. Ms. Aseema Chakma,

D/o Shri Ratan Chakma, Resident of Capital Complex, Khejurbagan, P.O. Kunjaban, P.S. East Agartala, Dist. West Tripura,

6. Ms. Sahani Debbarma,

D/o Shri Monoranjan Debbarma, Resident of Qrtr. No. T/II/24, Kunjaban Township, Shyamalibazar, P.O. Kunjaban, P.S. East Agartala, Dist. West Tripura.

7. Ms. Hellee Debbarma,

D/o Shri Bijan Debbarma, Resident of village Chargaria, P.O. Mandai, P.S. Jirania, Dist. West Tripura.

8. Shri Nitin Murasingh,

S/o Shri Brajalal Murasingh, Village & P.O. Chailengta,

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WP(C) 354/2011 & WA 35/2011

(Jadu Mohan Tripura Complexd), Langtherai Valley, Dhalai.

9. Ms. Harshita Debbarma,

D/o Shri Dilip Debbarma, Resident of Krishnanagar, Colonel Chowmuhani, P.O. Agartala, P.S. West Agartala, Dist. West Tripura.

10. Shri Saiman Debbarma,

S/o Shri Satya Narayan Debbarma, Old Kalibari Lane, Krishnanagar, P.O. Agartala, P.S. West Agartala, Dist. West Tripura.

11. Shri Amalendu Tripura,

S/o Shri Daya Kumar Tripura, Resident of Village & P.O. Ludhua, P.O. Sabroom, Dist. South Tripura, At present residing at Abhoynagar, P.O. & P.S. Abhoynagar, P.S. East Agartala, Dist. West Tripura.

12. Shri Paufru Mog,

S/o Angthai Mog, Resident of Village & P.O. Santirbazar, P.S. Santirbazar, Dist. South Tripura.

13. Shri Abhijit Tripura,

S/o Shri Chander Mohan Tripura, Resident of Bhati Abhoynagar, Near Cantonment Road, P.O. Agartala, P.S. West Agartala, Dist. West Tripura.

14. Shri Branela Debbarma,

S/o Shri Monmohan Debbarma, Resident of Krishnanagar, Suparibagan, Near Dasharath Deb Bhawan, P.S. East Agartala, Dist. West Tripura.

15. Ms. Namita Kaloi,

D/o Shri Ananta Kaloi, Resident of Village Boulapasa, P.O. & P.S. Kailasahar, Dist. North Tripura.

16. Shri V. S. Zela Darlong,

S/o Shri Lal Hminga Darlong,

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WP(C) 354/2011 & WA 35/2011

Resident of Village Munai, P.O. Deoracherra, P.S. Kaisasahar, Dist. North Tripura.

17. Shri Naresh Chandra Reang,

S/o Shri Shri Shyam Kumar Reang, Resident of Village Mashurai Para, Kamalacherra, P. O. & P.S. Ambassa, Dist. Dhalai.

[Petitioners in WP(C) 337/2011]

By Advocates :

Mr. A. K. Bhowmik, Sr. Advocate. Mr. M. Debbarma, Mr. B. Bhattacharjee, Mr. R. Dutta, Ms. M. Choudhury,

- versus -

Respondents:

1. The State of Tripura,

Represented by the Secretary to the Government of Tripura, Department of Higher Education, New Secretariat, Capital Complex, P.O. Kunjaban, P.S. East Agartala, Dist. West Tripura,

2. The Director of Higher Education,

Old Secretariat Building, P.O. Agartala, P.S. West Tripura, Dist. West Tripura,

3. The Director of Health Services,

Government of Tripura, Gurkhabasti, P.O. Kunjaban, P.S. East Tripura, Dist. West Tripura,

4. The Medical Council of India,

Having its office at Aiwan-e-Ghalib Marg, Kotla Road, New Delhi-110002, Represented by its Secretary,

5. The Tripura Board of Joint Entrance Examination (Directorate of Higher Education),

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WP(C) 354/2011 & WA 35/2011

3rd Floor, Building of Tripura Board of Secondary Education, Gurkhabasti, Agartala, PIN-799006,

Represented by its Chairman,

6. The Union of India,

Represented by its Secretary, Ministry of Health & Family Welfare, Government of India, New Delhi.

By Advocates: Mr. P. K. Biswas, Assistant Solicitor General of India. Ms. A. S. Lodh, Govt. Advocate, Ms. R. Guha, Advocate.

BEFORE

THE HON’BLE MR. JUSTICE I. A. ANSARI THE HON’BLE MR. JUSTICE C. R. SARMA

Date of hearing : 15.09.2011 & 16.09.2011. Date of delivery of Judgment: 21.09.2011

JUDGMENT & ORDER

(CAV) (Ansari, J.)

By this common judgment and order, we propose to dispose

of the writ petition, which has been registered as WP(C) No. 354 of

2011, and also the writ appeal, which has arisen out of the judgment

and order, dated 09-11-2011, passed in WP(C) No. 337 of 2011,

whereby the writ petition stands dismissed inasmuch as the decision

in any of the two, namely, the writ petition or the appeal, would

have a bearing on the outcome of the other, because some of the

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WP(C) 354/2011 & WA 35/2011

issues, raised in the appeal and the writ petition, are closely inter-

linked and wholly inseverable.

2. Before we come to the merit of the writ petition and the

appeal, it is necessary to, first, take note of the material facts, which

have given rise to the present appeal and, then, take note of the

material facts involved with the writ petition. The material facts,

leading to the present appeal, are, therefore, set out, in brief,

hereinbelow:

(i) Out of the appellants, who are 17 in number, as many as

9 appellants appeared in Tripura Board of Secondary Education (in

short, ‘the TBSE’), 6 of the appellants appeared in the Central Board

of Secondary Examination (in short, ‘the CBSE’) and the remaining

two appellants appeared in Indian School Certificate Examination

(in short, ‘the ISCE’). All of them secured more than 40% marks, in

aggregate, in Physics, Chemistry and Biology taken together and

being, thus, qualified to appear in the Joint Entrance Examination (in

short, ‘the JEE’) conducted by the Tripura Board of Joint Entrance

Examination for admission into the MBBS course, in the year 2011,

against 25 seats, reserved for candidates of Scheduled Tribe

belonging to the State of Tripura, the appellants, as members of the

Scheduled Tribe, appeared in the JEE pursuant to the notification,

dated 28.12.2010, issued, in this regard, by Tripura Board of Joint

Entrance Examination.

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WP(C) 354/2011 & WA 35/2011

(ii) While inviting applications from candidates for JEE, it

was, nowhere, mentioned by the Tripura Board of Joint Examination

in the notification, dated 28-12-2010, that a student, who appears as

a Scheduled Tribe candidate, has to secure a minimum of 40% marks

in the JEE and, in consequence thereof, the appellants claim to have

remained unaware of the fact that they would be required to secure

minimum 40% marks in the JEE, too, in order to qualify for

allotment of seats in the MBBS course from the State quota meant for

the candidates of the Scheduled Tribe. This apart, though the

Medical Council of India (in short, ‘the MCI’) suggested to the State

Government to provide coaching to the candidates of the Scheduled

Caste and Scheduled Tribe so as to enable them to compete and

qualify in the JEE, no such coaching was ever provided to the

appellants and other similarly situated persons; hence, no condition

for securing of minimum marks, in the said three subjects, in the

JEE, could have been legally insisted upon by the respondents.

(iii) Moreover, no cut-off marks, for allotment of seats to the

candidates in the MBBS course, as prescribed by the MCI, was, in

the past, insisted upon by the Tripura Board for allowing admission

into the MBBS course; but, all of a sudden, the State respondents, at

the time of counselling, informed the appellants and other similarly

situated candidates that none of them had secured, in the JEE, 40%

marks, which was the prescribed cut-off marks for the candidates of

Scheduled Tribe, in the JEE, and, hence, no seat for admission into

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WP(C) 354/2011 & WA 35/2011

the MBBS course could be allotted to the appellants. As a result

thereof, out of the total number of 25 seats, reserved for the

candidates of Scheduled Tribe in the State of Tripura, as many as 23

seats have remained vacant. Similarly, though two seats in the said

Medical College of the State are meant for the candidates of

Scheduled Caste belonging to the State of Tripura, both these seats

have remained vacant due to the fact that although the candidates

belonging to the Scheduled Caste did secure more than 40% marks

in Physics, Chemistry and Biology in their qualifying examination,

namely, TBSE, CBSE and ISCE, they have not been able to secure, as

indicated hereinbefore, 40% marks in the JEE. Aggrieved by the

conduct of the respondents, the appellants filed a writ petition,

under Article 226 of the Constitution of India, which gave rise to

WP(C) No.337/2011, challenging the decision of the respondents not

to admit the writ petitioners, i.e., the present appellants, into the

MBBS course against the quota meant for the candidates of

Scheduled Tribe of the State.

(iv) What was, in substance, pointed out, on behalf of the

writ petitioners, in the writ petition (which has given rise to the

present appeal), was that the respondents/authorities concerned

having not provided any coaching for improvement of the

candidates belonging to the Scheduled Caste and Scheduled Tribe so

as to enable them to complete and qualify in the JEE and having also

not informed the candidates, while inviting applications by

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WP(C) 354/2011 & WA 35/2011

notification, dated 28.12.2010, for JEE, that even the candidates,

belong to Scheduled Caste or Scheduled Tribe, as the case may be,

would have to secure minimum 40% marks, in the JEE too, in order

to become eligible for admission into the MBBS course against the

quota meant for such candidates in the State, the

respondents/authorities concerned could not have rejected the

candidature of the writ petitioners, (i.e., the present appellants), on

the ground that though they had secured more than 40% marks, in

aggregate, in Physics, Chemistry and Biology, in their respective

qualifying examination, i.e., TBSE, ISCE and CBSE, wherein some of

the writ petitioners, i.e., the present appellants, had secured 70%,

74% etc, marks), they had failed to secure the minimum 40% marks,

in the JEE, as required by the regulations of the MCI. The act of

refusal to admit the writ petitioners (i.e., the present appellants) into

the MBBS course on the ground that the appellants had not secured

40% marks, in the JEE, as indicated hereinbefore, was bad in law,

particularly, when, according to the writ petitioners (i.e., the present

appellants), the requirement of fulfilling the minimum marks of

40%, prescribed under the regulations of the MCI, is, in the light of

the decision, in State of M.P. Vs. Nivedita Jain (AIR 1981 SC 2045),

merely directory and not mandatory and the respondents ought not to

have, therefore, adhered to their decision not to allow the petitioners

to be admitted into the MBBS course on the ground that they had

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WP(C) 354/2011 & WA 35/2011

not secured the minimum required marks of 40%, in the said three

subjects, in the JEE.

(v) Resisting the writ petition, which has given rise to the

present appeal, the respondents, in the writ petition, submitted, in

effect, that the regulations of the MCI, when made with the consent

of the Central Government, become statutory in nature and have the

force of law. These regulations, including the regulations, which

prescribe, in respect of the reserved category candidates, securing of

40% marks, in the JEE, as the minimum mark for becoming eligible

for admission into the MBBS course, the same is mandatory in nature

and that the State Government does not have the power to admit,

contrary to the said Regulations, any candidate in its Medical

College. This apart, the respondents pointed out, in the writ petition

(which has given rise to the present appeal), that the regulations of

the MCI were duly published in the official Gazette and must,

therefore, be presumed to be known to all concerned including the

writ petitioners (i.e., the present appellants). The decision, in

Nivedita Jain (supra), pointed out the respondents, which had laid

down that holding of JEE or the prescription of securing minimum

percentage of marks, in the JEE, is merely directory and not

mandatory, has been disagreed to by the Supreme Court in its

subsequent decisions and, hence, the decision, in Nivedita Jain

(supra), can no longer be described as a good law with the result

that the prescription of securing minimum percentage of marks, in

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WP(C) 354/2011 & WA 35/2011

the JEE, by even the candidates, belonging to the Scheduled Caste

and Scheduled Tribe, is mandatory in nature and cannot be deviated

from by a State, while admitting candidates into the MBBS course.

(vi) A learned Single Judge of this Court, having found

force in the above submissions, made on behalf of the respondents,

has dismissed the writ petition. Feeling aggrieved, the writ

petitioners are before us in appeal. Thus, the rejection of the

candidature of the writ petitioners (i.e. the present appellants) on the

ground of their failure to secure minimum 40% marks in the JEE,

though each one of them has individually secured more than 40%

marks in Physics, Chemistry and Biology, taken together, in their

respective qualifying examination, namely, TBSE, CBSE and ISCE, was

upheld in the writ petition and it is against this finding and the

dismissal of the writ petition that the present appeal has been

preferred by those, who were the petitioners in the writ petition.

3. Having indicated the case of the appellants, we, now, turn to

the case of those persons, who are writ petitioners in WP(C) No. 354

of 2011. Their case is, in brief, thus: In the State of Tripura, Tripura

State Board is the only State Board, which conducts the qualifying

examination in Higher Secondary (10+2) and, in such a State, no JEE

or combined competitive examination was required to be held inasmuch

as the Regulations 4 and 5 of the MCI, if read together, would clearly

reveal that the basic qualification, for admission into the MBBS

course, is passing of higher secondary or equivalent examination,

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WP(C) 354/2011 & WA 35/2011

namely, TBSE, CBSE and ISCE, with not less than 40% marks in

Physics, Chemistry and Biology, in the Higher Secondary (10+2) or

the equivalent examination, these examination having been described

by the MCI’s regulations as the qualifying examination and that in the

case of a State, such as, Tripura, where, there is only one State Board

conducting the qualifying examination, namely, TBSE, holding of the

JEE, which the MCI’s regulations describe as combined competitive

examination, is not at all necessary. The inter se merit list of the

candidates, who obtain requisite marks in the qualifying examination,

shall, therefore, according to these writ petitioners, become the basis

of selection for admission into the MBBS course in a State like

Tripura.

4. In short, what the writ petitioners contend, in the present writ

petition, namely, WP(C) 354/2011, is that in the State of Tripura,

there being only one Board, conducting the qualifying examination, no

joint entrance examination (JEE) or combined competitive examination

is necessary and that inter se merit of the eligible candidates, in the

qualifying examination, shall become the basis for selection for

admission into the MBBS course. These writ petitioners also contend

that in the States, where more than one Board or University or

Examining Body conducts qualifying examination, the holding of

combined competitive examination is, in the light of the decisions, in

Nivedita Jain’s case (supra), optional and even if the combined

competitive examination is required to be held, the requirement of a

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WP(C) 354/2011 & WA 35/2011

candidate (belonging to Scheduled Tribe), securing minimum 40%

marks, in Physics, Chemistry and Biology, in combined competitive

examination, cannot be insisted upon, because when a candidate, in a

State, where there is only one University/Board/Examining body

conducting qualifying examination, may, in a given case, receive

admission into the MBBS course if he finds place in the inter se merit

list prepared on the basis of the result of the qualifying examination,

provided that he satisfies the basic pre-requisite of obtaining 40%

marks, in the said three subjects, in the qualifying examination, there is

no reason why a candidate, who has already satisfied the minimum

eligibility criterion of obtaining 40% marks, in the said three

subjects, in the qualifying examination, cannot be selected for

admission into the MBBS course in a State, where there are more

than one University/Board/Examining body for conducting

qualifying examination, if his name finds place in the inter se merit list

prepared on the basis of the result of the combined competitive

examination.

5. Thus, according to these writ petitioners, when the basic

eligibility for admission into the MBBS course is securing of 40%

marks in Physics, Chemistry and Biology, taken together, in the

qualifying examination(s), namely, TBSE, CBSE and ISCE, the

insistence, by the MCI’s regulations, that a candidate, appearing in

the JEE or combined competitive examination, must obtain 40% marks

in the JEE or the combined competitive examination, too, in the said

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WP(C) 354/2011 & WA 35/2011

three subjects, in order to become eligible for consideration for

admission into the MBBS course, is discriminatory, irrational,

illogical, arbitrary and does not, therefore, withstand the test of

reasonableness and non-arbitrariness guaranteed under Article 14 of

the Constitution.

6. To put it a little differently, what the writ petitioners, in

WP(C) 359/2011, while challenging the vires and constitutionality of

the MCI’s regulations, contend, is that the basis of selection of

candidates for admission into the MBBS course, in a State, where

there is only one university, board or examining body conducting

qualifying examination, is the requirement of obtaining of minimum

40% marks in Physics, Chemistry and Biology in the qualifying

examination and, consequently, it is possible for a candidate, in such

a State, to enter into the MBBS course if he has satisfied the criterion

of obtaining the minimum of 40% marks in Physics, Chemistry and

Biology in the qualifying examination provided that his name finds

place in the inter se merit list prepared on the basis of the result of

the qualifying examination; whereas, a candidate, in a State, where

there are more than one university, board or examining body

conducting qualifying examination, a candidate, in order to become

eligible for admission into the MBBS course, is required to not only

obtain minimum 40% marks, in the said three subjects, in the

qualifying examination, but he must also obtain, in the combined

competitive examination, 40% marks in the said three subjects, even if

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WP(C) 354/2011 & WA 35/2011

his name can be placed in the inter se merit list against the quota

available to him for admission into the MBBS course. Thus, while a

candidate with minimum 40% marks, in the said three subjects, in

the qualifying examination, may enter into the MBBS course in a State,

where there is only one university, board or examining body

conducting qualifying examination, a candidate, in a State, where

there are more than one university, board or examining body

conducting qualifying examination, would become ineligible to get

admission into the MBBS course if he does not secure 40% marks in

the said three subjects, in the combined competitive examination too.

This insistence of obtaining of 40% marks, in the combined competitive

examination, is, according to the writ petitioners, wholly irrational,

unreasonable, arbitrary, discriminatory and the same may, therefore,

not be upheld.

7. We have heard Mr. A.K. Bhowmik, learned Senior counsel,

appearing on behalf of the appellants, and Ms. A. S. Lodh, learned

Govt. Advocate, for the State respondents. We have also heard Mr.

P.K. Biswas, learned ASG, for the MCI.

8. While considering the present appeal as well as the writ

petition, the common grounds of challenge need to be carefully

discerned. It is the stand of the writ appellants as well as the writ

petitioners that in the State of Tripura, there is only one secondary

Board, namely, TBSE, which conducts the qualifying examination and,

hence, it is Regulation 5(5)(i) of the MCI, which ought to have been

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applied. In other words, according to the appellants as well as the

writ petitioners, the State of Tripura, being a State, which has only

one Education Board, namely, the Tripura State Board, which

conducts the qualifying examination, Tripura shall be taken to be a

State, where one Board is conducting qualifying examination and in

such a case, the requirement of holding of combined competitive

examination, as prescribed by Regulation 5(5)(ii) of the MCI, ought

not to have been insisted upon. The second contention, while

challenging the refusal of the respondents to allow the writ

appellants as well as the writ petitioners’ admission into the MBBS

course, is that even if Regulation 5(5)(ii) is applicable to the State of

Tripura, the application of Regulation 5(5)(ii) is merely directory and

not mandatory. Reliance in support of this contention is placed to

the case of Nivedita Jain (supra).

9. Besides the above two grounds of challenge, which are

common in nature in both the writ appeal as well as writ petition,

the present writ petition puts to challenge the decision of the

respondents on yet another ground and the ground of challenge is

the requirement of Regulation 5(5)(ii) that a candidate, for the

purpose of finding his place in the merit list, prepared on the basis

of the combined competitive examination, must be one, who has

obtained the minimum of 40% marks, in Physics, Chemistry and

Biology, in the combined competitive examination. The requirement of

obtaining 40% marks, in the said three subjects, in the combined

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competitive examination, has been put to challenge on the ground that

this condition is irrational, unreasonable, discriminatory, wholly

arbitrary and, therefore, does not withstand the test of Article 14

inasmuch as it is possible that in a State, where there is only one

University/Board/ Examining Body, conducting the qualifying

examination, a candidate, who has obtained 40% marks, in the said

three subjects in the qualifying examination, may obtain admission

into the MBBS course by merely securing 40% marks, in the said

three subjects, in qualifying examination, because the merit list is

prepared on the basis of the marks obtained in the qualifying

examination and a candidate, who has obtained merely 40% marks, in

the said three subjects, in the qualifying examination, may find his

place in the inter se merit list, whereas a candidate, in a State, where

there are more than one Board/University/Examining body, which

conducts qualifying examination, is required not only to appear in a

combined competitive examination, but also obtain 40% marks, in the

said three subjects, in the combined competitive examination, too, in

order to receive admission into the MBBS course.

10. The dichotomy, according to these writ petitioners, is that a

candidate, in a State, where there is more than one

University/Board/Examining Body, conducting qualifying

examination, has to, first, satisfy the norm of securing, at least, 40%

marks, in the said three subjects, in the qualifying examination, and,

then, again, he is required to obtain minimum 40% marks, in the

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said three subjects, in the combined competitive examination too,

though he may have, otherwise, been able to obtain admission on

the basis of the merit list prepared out of the result of the qualifying

examination if he has been a candidate in a State, where there is only

one University/Board/Examining body for conducting qualifying

examination provided his name figured in the inter se merit list

prepared on the basis of the marks obtained in the qualifying

examination. The embargo of securing 40% marks for the second

time, in the said three subjects, in the combined competitive

examination, is, thus, according to these petitioners, wholly

discriminatory, irrational, unreasonable, arbitrary and cannot be

said to withstand the test of Article 14.

11. In other words, according to these writ petitioners,

Regulation 5(5)(ii), which requires not only holding of combined

competitive examination (i.e., JEE), but also prescribes obtaining of

40% marks, in Physics, Chemistry and Biology, taken together, in the

JEE or combined competitive examination, as the minimum qualifying

mark for obtaining admission into MBBS course, is in violation of

Article 14 and what ought to have been done by the MCI, according

to these writ petitioners, was to conduct combined entrance

examination (i.e., JEE) and, on the basis of the marks obtained in such

an examination, inter se merit list ought to have been drawn, as is

done in the case of the State(s), where there is only one

University/Board/Examining Body conducting qualifying

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examination, and, on the basis of such merit list, candidates ought to

have been admitted into the MBBS course without insisting upon the

condition of securing of 40% marks, in Physics, Chemistry and

Biology, in the combined competitive examination or JEE too. These writ

petitioners contend that when a candidate of every Board, which

conducts qualifying examination, is equally eligible for consideration

for admission into MBBS course on the basis inter se merit list if he

has the minimum qualifying marks of 40%, in Physics, Chemistry

and Biology, taken together, in the qualifying examination(s), namely,

TBSE, CBSE and ISCE, if he is from a State, which has not more than

one University/Board/Examining body conducting qualifying

examination, the insistence by the MCI that even in the combined

competitive examination (i.e., JEE), a candidate must secure 40%

marks, in Physics, Chemistry and Biology for admission into the

MBBS course, is bad in law inasmuch as such a combined entrance

examination (i.e. JEE) is conducted to determine the inter se merit of

the eligible candidates and, in the inter se merit list of the eligible

candidates, if a candidate’s name appears, he ought to be granted

admission into the MBBS course even if he has not secured the

minimum prescribed marks of 40%, in the said three subjects, in the

combined competitive examination (i.e., JEE).

12. In the backdrop of the grievances of the appellants as well as

the writ petitioners, let us, now, determine how far the respondents

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have been able to meet the challenges posed to their scheme of

selection prescribed by the MCI regulations.

13. For better appreciation of the issue involved, the relevant

portions of Regulations 4 and 5 are reproduced hereinbelow:

“4. Admission to the Medical Course-Eligibility Criteria : No

candidate shall be allowed to be admitted to the Medical Curriculum

proper of first Bachelor of Medicine and Bachelor of Surgery

(MBBS) Course until:

(1) He/she shall complete the age of 17 years on or before 31st

December of the year of admission to the MBBS Course.

(2) He/she has passed qualifying examination as under:

(a) The higher secondary examination or the Indian School

Certificate Examination, which is equivalent to 10+2 Higher

Secondary Examination after a period of 12 years study, the last two

years of study comprising of Physics, Chemistry, Biology and

Mathematics or any other effective subjects with English at a level

not less than the core course for English as prescribed by the

National Council for Educational Research and Training after the

introduction of the 10+2+3 years educational structure as

recommended by the National Committee on education.

5. Selection to Students. The selection of students to medical college

shall be based solely on merit of the candidate and for determination

of merit, the following criteria be adopted uniformly throughout the

country:

(1). In States, having only one Medical College and one

university/board/examining body conducting the qualifying

examination, the marks obtained at such qualifying examination

may be taken into consideration.

(2). In States, having more than one university/board/examining

body conducting the qualifying examination, (or where there is more

than one medical college under the administrative control of one

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authority) a competitive entrance examination should be held so as

to achieve a uniform evaluation as there may be variation of

standards at qualifying examination conducted by different agencies.

(3). Where there are more than one college in a state and only one

university/board/examining body conducting the qualifying

examination, then a joint selection board be constituted for all the

colleges.

(4). A competitive entrance examination is absolutely necessary in

the cases of institutions of All India character.

5. Procedure for selection to MBBS course shall be as follows:-

i) In case of admission on the basis of qualifying examination under

clause (1) based on merit, the candidate for admission to MBBS

course must have passed in the subjects of Physics, Chemistry,

Biology and English 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) or

Regulation 4. In respect of candidates belonging to Scheduled

Castes, Scheduled Tribes or Other Backward Classes, the marks

obtained in Physics, Chemistry and Biology taken together in

qualifying examination be 40% instead of 50% as above.

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 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) or Regulation 4

and 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

Scheduled Castes, Scheduled Tribes or Other Backward Classes the

marks obtained in Physics, Chemistry and Biology taken together in

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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 competitive entrance examination

and in case of selection for admission to the MBBS course, he shall

not be admitted to that course until he fulfils the eligibility criteria

under Regulation 4.

The following has been added before the proviso to Clause

5(5)(ii) in terms of notification published on 25.03.2009 and the

same is annexed as Annexure-VIII.

Provided that the eligibility criteria for admission to persons

with locomotors disability of lower limbs in terms of Clause 4(3)

above will be a minimum of 45% marks instead of 50% taken

together in qualifying examination and competitive entrance

examination for admission in MBBS course.”

14. From a cautious and careful reading of Regulations 4 and 5, as

a whole, what clearly transpires is that a candidate, in order to

become eligible for admission into the MBBS course, must not only

have passed the qualifying examination, the qualifying examination

being Higher Secondary examination or an equivalent examination,

but must have also secured minimum 40% marks in Physics,

Chemistry and Biology, taken together, in the qualifying examination.

The Regulations also provide that where there is only one

University/Board/Examining Body, which conducts the qualifying

examination, a candidate, who has secured minimum of 40% marks

in Physics, Chemistry and Biology, taken together, in the qualifying

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examination, is eligible for admission into the MBBS course and an

inter se merit list of such eligible candidates, who come forward to

take admission into the MBBS course, has to be prepared and if such

a candidate finds place in the inter se merit list, prepared on the basis

of the result in the qualifying examination, he shall become entitled to

receive admission into the MBBS course and there is no other

limitation or restriction on the admission of such a candidate. It is,

therefore, quite possible, in such a State, that a candidate enters into

the MBBS course even if he has obtained only the minimum

required marks of 40%, in Physics, Chemistry and Biology, taken

together, in the qualifying examination. This is the scheme of

Regulation 5(5)(i).

15. As against the above scheme of admission in a State, wherein

there is only one University/Board/Examining Body, which

conducts the qualifying examination, Regulation 5(5) (ii) imposes

further restrictions, for the purpose of admission into the MBBS

course, in the case of a State, wherein more than one

University/Board/Examining Body conduct the qualifying

examination. The condition, laid down by Regulation 5(5)(ii), is that

there must be combined competitive examination, popularly known as

Joint Entrance Examination (or JEE), and a candidate, belonging to

Scheduled Caste or Scheduled Tribe, in such a State, must, apart

from having secured 40% marks, in Physics, Chemistry and Biology,

taken together, at the qualifying examination, secure 40% marks, in

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Physics, Chemistry and Biology, taken together, in the combined

competitive examination (i.e., JEE) too.

16. More elaborately speaking, as against the above scheme

meant for admission, where there is only one

University/Board/Examining Body, which conducts the qualifying

examination, Regulation 5(2) read with Regulation 5(5)(ii) provides

that where there are more than one University/ Board/ Examining

Body, which conduct the qualifying examination, a combined

competitive examination should be held so as to achieve a uniform

evaluation as there may be variation of standards at the qualifying

examination conducted by the different agencies and, in this regard,

Regulation 5(5)(ii) further lays down that in such a case, a candidate,

belonging to Scheduled Caste or Scheduled Tribe, is required not

only to secure, at least, 40% marks in Physics, Chemistry and

Biology, taken together, at the qualifying examination, but he must, in

order to become eligible for consideration for admission into the

MBBS course, obtain a minimum of 40% marks in Physics,

Chemistry and Biology, taken together, at the combined competitive

examination, too.

17. Thus, the language, used in Regulation 5(1) read with

Regulation 5(5)(i) vis-a-vis Regulation 5(2) read with Regulation

5(5)(ii), makes it abundantly clear that if there is a State, where there

is only one University/Board/Examining Body, which conducts the

qualifying examination, then, the marks, obtained at such a qualifying

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examination, will be the basis for selection for admission into the

MBBS course subject to the condition that a candidate, belonging to

reserved category, in such a State, ought to have obtained a

minimum of 40% marks in Physics, Chemistry and Biology, taken

together, at the qualifying examination, but where there are more than

one University/Board/Examining Body, which conduct the

qualifying examination, there should be a combined competitive

examination so as to achieve a uniform evaluation. In such a combined

competitive examination, in order to obtain admission into the MBBS

course, a general category candidate must secure a minimum of 50%

marks, taken together, in Physics, Chemistry and Biology; whereas a

candidate, belonging to Scheduled Caste or Scheduled Tribe or

Other Backward Classes, must obtain, at least, 40% marks in Physics,

Chemistry and Biology, taken together, in the qualifying examination

as well as the competitive entrance examination.

18. What emerges from the above discussion is that Regulation

5(1) read with Regulation 5(5)(i), while laying down the procedure

for selection of candidates for admission into the MBBS course,

makes it clear that the State, where there is only one

University/Board/Examining Body, which conducts the qualifying

examination, a candidate, belonging to Scheduled Caste or Scheduled

Tribe, would receive admission into the MBBS course in terms of the

inter se merit list of the candidates prepared on the basis of the result

in the qualifying examination even if he has secured merely 40%

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marks in Physics, Chemistry and Biology in the qualifying

examination inasmuch as there is no further examination, in the form

of combined competitive examination or JEE, and no requirement of

further cut-off mark.

19. What is, now, imperative to note, which is transparent from

the case of the appellants themselves, is that as many as 9 of them

have passed the qualifying examination conducted by the TBSE, 6 of

them have passed the qualifying examination conducted by the CBSE

and the remaining two have passed the qualifying examination

conducted by the ISCE. Clearly, therefore, there are three Boards,

which are conducting the qualifying examination in the State of

Tripura. Thus, in Tripura, it is Regulation 5(2) read with Regulation

5(5)(ii), which would be applicable and have been applied in the

present case.

20. Referring to Nivedita Jain (supra), it has been contended, on

behalf of the appellants, by Mr. Bhowmik, learned Senior counsel,

that even in a State, where there are more than one

University/Board/Examining Body conducting qualifying

examination, it is not mandatory to hold a combined competitive

examination inasmuch as Regulation 5(ii) is merely directory and not

mandatory. Suffice it to point out, in this regard, that much water has

flown since the decision, in Nivedita Jain (supra), was rendered and

in Dr. Preeti Srivastava and another Vs. State of M.P. and others

(1999) 7 SCC 120, a Constitution Bench of the Supreme Court has

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overruled the decision, in Nivedita Jain (supra), by holding that

Regulation 5(ii) is not merely directory, but mandatory.

21. There can, therefore, be no escape from the conclusion, in the

light of the decision in Dr. Preeti Srivastava (supra), that so long as

Regulation 5(5)(ii) is treated as valid in its entirety, there ought to

have been held, and has been rightly held, in the State of Tripura,

combined competitive examination (i.e., JEE) for admission into the

MBBS. If Regulation 5(5)(ii) is found valid, as a whole, the

respondents cannot be said to have committed any illegality in

conducting combined competitive examination or JEE or in refusing to

admit the writ petitioners as well as the appellants into the MBBS

course on the ground that they have not been able to secure, at least,

40% marks in Physics, Chemistry and Biology, taken together, in the

combined competitive examination or JEE, though they have obtained

40% marks, in the said three subjects in the qualifying examination.

22. It further follows from the above discussion that the

contention of the appellants that in the State of Tripura, TBSE is the

only Board, which conducts the qualifying examination and

Regulation 5(2) read with Regulation 5(5)(ii) is not attracted, has no

substance at all inasmuch as Tripura is a State, wherein more than

one Board, as already indicated hereinabove, have been conducting

the qualifying examination and, hence, the combined competitive

examination or JEE, as perceived by Regulation 5(2) read with

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Regulation 5(5)(ii), is mandatory provided that this Court upholds the

Regulation 5(5)(ii) in its entirety.

23. Considering the fact that Tripura is a State, where more than

one Board conducts and has been conducting the qualifying

examination and Regulation 5(5)(ii) is applicable, it logically follows

that so long as Regulation 5(ii) is treated as valid in its entirety, a

candidate, belonging to Scheduled Tribe, ought to obtain, at least,

40% marks, in the said three subjects, in the combined competitive

examination or JEE in order to become eligible for admission into the

MBBS course; and the mere fact, that seats are still lying vacant,

cannot be a ground or reason for demanding that the requirement of

securing 40% marks, in the said three subjects, in the JEE or combined

competitive examination, be not insisted upon.

24. As neither the appellants nor the writ petitioners, which has

given rise to WP(C) No. 354 of 2011, have obtained the minimum of

40% marks in the competitive entrance examination or JEE, as

envisaged by Regulation 5(5)(ii), they were not eligible and have

rightly not been treated as eligible for admission into the MBBS

course provided that Regulation 5(5)(ii) is upheld by this Court as a

valid piece of Regulation in its entirety.

25. Let us, therefore, now, determine if Regulation 5(5)(ii) is a

valid piece of Regulation.

26. The thrust of the various decisions and the character of the

judicial pronouncements, on the question of nature of applicability

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of the regulations of the MCI, is that Medical Council of India is a

creature of the Indian Medical Council Act, which is a piece of

legislation relatable to Entry 66 of List I of the Union List. Any

legislation, made pursuant to Entry 66 List I, shall prevail upon the

State enactment to the extent that the State enactment, which is

made pursuant to Entry 25 or 26 of the List III (Concurrent List), is

repugnant to the legislation made under Entry 66. The Regulations,

made by the Medical Council of India with the approval of the

Central Government, acquire statutory force. Reference, in this

regard, may be made to Medical Council of India Vs. State of

Karnataka and others, reported in (1998) 6 SCC 131.

27. There is no dispute, in the present case, that the Regulations,

made by the MCI, would prevail on the State legislation, if any, or

on the State’s scheme, if any, for admission into the MBBS course.

What was, however, contended, as already indicated above, in the

writ petition, which has given rise to the appeal, is that Regulation

5(5)(ii) of the MCI, which insists that a candidate must secure a

minimum of 40% marks, in the said three subjects, in the combined

competitive examination in order to become eligible for consideration

for admission into the MBBS course, is not mandatory. Reliance, in

support of this proposition, as has been noticed, was placed on State

of M.P. Vs. Nivedita Jain (AIR 1981 SC 2045). The decision, in

Nivedita Jain (supra), has, however, been disagreed to, and

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specifically overruled, in Dr. Preeti Srivastava (supra), wherein the

Constitution Bench, at para 56, has observed and held thus:

“56. In State of M.P. Vs. Nivedita Jain (1981) 4 SCC 296,

the provisions of the Indian Medical Council Act and the regulations

framed for undergraduate medical courses were considered by the

Court. The Court said that while Regulation I was mandatory,

Regulation II was only recommendatory and need not be followed.

We do not agree with this line of reasoning for the reasons which we

have set out above.”

28. What emerges clearly is that Regulations of the MCI would

prevail if legislation of a given State comes in conflict with the MCI

Regulations.

29. What also clearly emerges from the above discussion is that

Regulation 5(5) (ii) requiring holding of the combined competitive

examination for admission into the MBBS course in a State, where

more than one University/Board/Examining Body conducts the

qualifying examination, is mandatory. These two aspects cannot be

disputed and have, at the end of the hearing, not, in fact, been

disputed.

30. The question, which, however, remains to be decided is:

whether the prescription of securing 40% marks in Physics,

Chemistry and Biology by candidates belonging to Scheduled Caste

or Scheduled Tribe, in the said three subjects, in the combined

competitive examination, is a valid condition, when a counterpart of

such a candidate would be qualified to be admitted into the MBBS

course if his name falls in the inter se merit list prepared on the basis

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of the marks obtained in the qualifying examination alone provided

that he has obtained 40% marks, in the said three subjects, in the

qualifying examination. It is, thus, the vires of the Regulation 5(5)(ii),

which is under challenge in the writ petition, namely, WP(C)

254/2011.

31. While considering the above aspect of the matter, it needs to

be noted that in Visveswaraiah Technological University and

another Vs. Krishnendu Halder and others, reported in (2011) 4

SCC 606, the Supreme Court, having clearly held that the All India

Council for Technical Education (AICTE), which has been

established under All India Council for Technical Education Act,

1987, for proper planning and coordinated development of technical

education throughout the country is competent to make rules

governing admission into higher education and that determination

of standards fixed by them are beyond the purview of judicial

review, has, nevertheless, pointed out that non-interference in exercise

of power of judicial review is hedged by the condition that standard

fixed shall not be arbitrary. The relevant observations, made in this

regard, which appear at para 17, read as under:

“17. No student or college, in the teeth of the existing and prevalent

rules of the State and the University can say that such rules should

be ignored, whenever there are unfilled vacancies in colleges. In fact,

the State/University may, in spite of vacancies, continue with the

higher eligibility criteria to maintain better standards of

higher education in the State or in the colleges affiliated to

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the University. Determination of such standards, being part

of the academic policy of the University, are beyond the

purview of judicial review, unless it is established that such

standards are arbitrary or “adversely affect” the standards, if

any, fixed by the central body under a Central enactment. The

order of the Division Bench is, therefore, unsustainable.”

[Emphasis supplied]

32. From what has been observed, in Visveswaraiah

Technological University’s case (supra), it becomes abundantly

clear and leaves no room for doubt that the Constitutionality of a

regulation of the MCI can be challenged on the ground that it is

arbitrary. The question, therefore, which we have to, now, determine

is: Whether Regulation 5(5)(ii) is rational, non-arbitrary, reasonable

and can withstand the test of Article 14.

33. While considering the above aspect of the case, it needs to be

very carefully noted that a candidate, who has passed the qualifying

examination, conducted by any of the University/Board/Examining

Body, is eligible for admission into the MBBS course if he has

obtained a minimum of 40% marks in Physics, Chemistry and

Biology, taken together, in the qualifying examination, provided that

he finds a place in the inter se merit list prepared on the basis of the

marks obtained in the qualifying examination.

34. A minute reading of Regulation 5(5)(ii) leaves no room for

doubt that combined competitive examination has been insisted upon,

and rightly so, in order to achieve a uniform evaluation as there may

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be variation of standards at various qualifying examination conducted

by different agencies.

35. Thus, it is merely to bring uniformity in the evaluation that

the combined competitive examination is conducted so that inter se

merit list of these candidates can be prepared, who have passed,

with minimum required marks, the qualifying examination from

various Universities/Boards/Examining Bodies and have sought for

admission into the MBBS course.

36. Was it, then, reasonable and rational, on the part of the MCI,

to fix 40% as minimum required marks, in Physics, Chemistry and

Mathematics, in the combined competitive examination, too, for

obtaining admission into the MBBS course ? The irrationality, in this

requirement, can be illustrated thus: Let us assume that Tripura is a

State, wherein it is TBSE alone, which conducts the qualifying

examination; Assam is a State, where, let us assume, it is only the

CBSE, which conducts the qualifying examination and, similarly, West

Bengal, let us assume, is a State, wherein ISCE is the only body,

which conducts the qualifying examination. A candidate, in any of

these States, can get admission into their Medical College if he

secures a minimum of 40% marks, in Physics, Chemistry and

Biology in the qualifying examination, provided that he falls in the

inter se merit list drawn on the basis of the marks obtained by the

candidates in the qualifying examination. It can also be clearly seen

that the results of the qualifying examination, held by each of the

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bodies, which conducts the said qualifying examination, can become

the basis for drawing inter se merit list of the candidates for

admission into the MBBS course. Consequently, in such a case, even

a candidate, who has obtained the minimum requisite marks of 40%,

in the said three subjects, in the qualifying examination, can get

admitted into the MBBS course if his name finds place in the inter se

merit list drawn on the basis of the result of the qualifying

examination. Let us, now, assume that the same candidate moves

over to, say, the State of U.P., where more than one University,

Board or the Examining Body conducts the qualifying examination. In

such circumstances, on the basis of the combined entrance examination,

a merit list is drawn. This merit list is drawn only out of the

candidates, who have secured, if he belongs to Scheduled Caste or

Scheduled Tribe, the minimum required marks of 40% in Physics,

Chemistry and Biology in the qualifying examination.

37. Ordinarily, on the basis of the merit list, prepared by holding

combined competitive examination, admission into the MBBS course

ought to have been granted, because each of the candidates, who

participates in the combined competitive examination, has already

obtained the minimum required marks of 40%, in the said three

subjects, in the qualifying examination as is done in the case of a State,

wherein only one University, Board or examining Body conducts the

qualifying examination. Why the MCI Regulations insist on securing

40% marks by a candidate, in the combined competitive examination,

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too, is not discernible from the Regulations, when there is no such

restriction or requirement imposed in the case, where there is only

one University, Board or examining Body, which conducts the

qualifying examination. To a pointed query made by this Court, even

Mr. Biswas, learned ASG, could not explain as to why the MCI has

insisted that a candidate, appearing in the combined competitive

examination, must secure 40% marks in the said three subjects, in the

combined competitive examination, even if the candidate is one, who

has secured 40% marks, in Physics, Chemistry and Biology, in the

qualifying examination, whereas a candidate, who has secured 40%

marks, in Physics, Chemistry and Biology, taken together, in the

qualifying examination (in a State, where only one University/

Board/Examining Body conducts the qualifying examination) can get

admission into the MBBS course if his name finds place in the inter se

merit list prepared on the basis of the result of the qualifying

examination alone.

38. Thus, there is no reason as to why a candidate, appearing in

the combined entrance examination, who has already satisfied the

requirement of obtaining minimum 40% marks, in Physics,

Chemistry and Biology, in the qualifying examination, must also

obtain minimum 40% marks, in the said three subjects, in the

combined competitive examination. Logically speaking, if, in the

combined competitive examination, such a candidate falls within the

merit list prepared on the basis of the marks obtained in the combined

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competitive examination, he ought to be granted admission into the

MBBS course and if he is to be denied admission, then, the MCI

must explain the reason for doing so and the reason assigned must

be rational.

39. In the present case, the MCI has completely failed to assign

any reason, far less convincing and plausible reason, for insisting

upon securing of minimum 40% marks by Scheduled Caste and

Scheduled Tribe candidates in the combined entrance examination too.

40. It has been faintly attempted by Mr. P.K. Biswas, learned ASG,

to suggest that the idea of insisting upon 40% marks, in the said

three subjects, in the combined competitive examination, is to secure

best of the candidates on merit. This claim, made by Mr. Biswas, on

behalf of the MCI, falls flat, when one notices that a candidate,

belonging to Scheduled Caste or Scheduled Tribe, has the possibility

of entering into the MBBS course in the State, where only one

University/Board/Examining Body has conducted the qualifying

examination, if such a candidate has secured minimum 40% marks, in

Physics, Chemistry and Biology, in the qualifying examination and his

name finds place in the merit list drawn on the basis of the marks

obtained by the candidates in the qualifying examination. This is

precisely what has been in the present case. Similarly, therefore,

after holding combined entrance examination in the States, where more

than one University/Board/Examining Body have been conducting

the qualifying examination, a candidate ought to be selected on the

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basis of inter se merit list drawn of such candidates, because every

candidate, in the combined competitive examination, has already

satisfied the minimum prescribed requirement of securing of 40%

marks, in Physics, Chemistry and Biology, taken together, in the

qualifying examination. If, in the combined competitive examination, he

does not find place in the inter se merit list as against the quota

available to him, then, such a candidate can have no grievance; but,

if he, otherwise, finds place in the merit list against the quota meant

for him, he cannot, without a rational cause, be denied admission

into the MBBS course, when he has already satisfied the requirement

of obtaining entry into the MBBS course by securing the required

minimum 40% marks, in Physics, Chemistry and Biology, in the

qualifying examination. The purpose of holding the combined

competitive examination ought to have been only to prepare an inter

se merit list of the various candidates, who had appeared in the

qualifying examinations conducted by various University/

Board/Examining bodies. No reason could be assigned, as already

indicated above, as to why there shall be insistence on obtaining 40%

marks by a candidate, in Physics, Chemistry and Biology, in the

combined competitive examination for getting admission into MBBS

course.

41. It needs to be, now, noted that though the regulations, framed

by the MCI, have been upheld by the Supreme Court in its various

judicial pronouncements, the fact of the matter remains that in none

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of the decisions, cited and relied upon, the constitutionality and/or

vires of the Regulation 5(5)(ii) have been put to challenge. When the

issue has not specifically been raised and has not been decided, the

constitutionality of the MCI’s Regulation 5(5)(ii) remains open for

challenge on the ground of its irrationality. Considered in this light,

it is open to this Court to determine if the insistence by the MCI that

a candidate, who appears in the combined competitive examination,

must secure, in order to be able to enter into MBBS course,

minimum of 40% marks, in the said three subjects, in the combined

competitive examination, is irrational, when there is no such

restriction, under Regulation 5(5)(i), in respect of a candidate of a

State, where there is only one University/Board/Examining Body,

which conducts the qualifying examination. The logic for having two

different standard is not discernable, when we find that as many as

20 seats, in the quota meant for the candidates of Scheduled Tribe,

belonging to the State of Tripura, have remained without being

filled up due to the condition so imposed by Regulation 5(5)(ii),

whereas all the appellants would have been admitted into the MBBS

course, in the State of Tripura, if there would have been only one

University/Board/Examining Body, conducting the qualifying

examination. It needs to be borne in mind that, in order to pass the

test of Article 14, it is not enough for the State to assign „a‟ reason;

every reason, assigned by the State, must be rational and convincing.

In the present case, the MCI has miserable failed to disclose the

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rationality behind introducing the cut-off mark of 40% in the

combined competitive examination or JEE too.

42. Because of what have been discussed and pointed out above,

What becomes clear, and we do hold, is that the MCI Regulation

5(5)(ii) is in violation of Article 14, which guarantees equality of

treatment, so far as Regulation 5(5)(ii) requires securing of 40%

marks in the combined competitive examination as the basis for

selection for admission into the MBBS course.

43. In the result and for the reasons discussed above, the appeal

as well as the writ petition succeed. The respondents are hereby

directed to prepare a merit list of the candidates on the basis of the

marks obtained by them, in the combined competitive examination

(JEE), and those candidates, who find their place in the merit list, so

prepared against their respective quota of seats, shall be admitted

into the MBBS course within a week from today.

44. With the above observations and directions, this appeal and

the writ petition shall stand disposed of.

45. No order as to costs.

JUDGE JUDGE

dutt-Paul-rk

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