IMPORTANT POINT
There can be only one common entrance test for determining eligibility for post graduation for in-service candidates and for those not in service and the requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the Medical Council of India Regulations framed in this behalf even for the inservice candidates.

Headnote:Indian Medical Council Act, 1956-Section 33 r/ws 20-Post Graduate Medical Education Regulations 2000-Regulation 9-Selection of Post Graduate students-Eligibility of in-service candidates-Prescription of minimum percentage of marks-Challenged as ultra vires in its applicability to in-service candidates-Whether in-service candidates can be declared to have qualified for entrance to PG degree/diploma courses without insisting on prescribed minimum qualifying marks-(No)-Requirement of minimum qualifying marks cannot be lowered or released for in-service candidates contrary to Medical Council of India regulations-Admissions given to such of in-service candidates who have secured marks less than the minimum prescribed by Regulation 9 are struck down and set aside-Dr. Preeti Srivastava Case, 1999(5) Supreme 10 : Followed.
Held : Out of the several conclusions summed up by the Court the one relevant for the purpose of the present case is - There can be only one common entrance test for determining eligibility for post graduation for in-service candidates and those not in service. The requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the Medical Council of India regulations framed in this behalf." The Court has observed that subject to securing the minimum qualifying marks if the in-service candidates formulate a class by themselves for whom a separate channel of entry has been carved out then within the group there may be scope for assigning weightage for rural service rendered, for the purpose of determining order of merit inter se, but such weightage cannot be utilized for the purpose of relaxing the condition as to minimum qualifying marks as prescribed by the Medical Council of India. The decision of the Full Bench of the High Court, having been rendered in ignorance of the binding law laid down by the majority opinion in the Constitution Bench decision of this Court in Dr. Preeti Srivastava and Anr. (supra) and also being inconsistent with the decision of this Court in the case of Gopal D. Tirthani & Ors. (supra), is liable to be set aside. The appeal is allowed. The impugned judgment of the Full Bench of the High Court of Rajasthan is set aside and the judgment given by the learned single Judge is restored. As a consequence, the admissions given to such of the in-service candidates who have secured marks less than the minimum prescribed by Regulation 9 framed by the Medical Council of India are struck down and set aside. The counseling shall have to be done afresh to the extent necessary. We are conscious of the fact that there would be some delay in commencement of post-graduation studies and to some extent the 2002 and 2003 batches would overlap. However, that is a situation which cannot be avoided. It is an inevitable consequence for which the successful 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 this judgment, cannot be made to suffer for no fault of theirs. It will be for the State of Rajasthan, if necessary then in consultation with the Medical Council of India, to sort out the difficulties and to run the regular courses of the studies. (Paras 18 to 21)

JUDGMENT

R.C. Lahoti, J.-Leave granted in SLP (C) Nos. 4965/03 and 14367-91/03.

2. In exercise of the powers conferred by Section 33 read with Section 20 of the Indian Medical Council Act, 1956, the Medical Council of India has, with the previous sanction of the Central Government, made the regulations called "the Post Graduate Medical Education Regulations 2000" (hereinafter the Regulations, for short). Regulation 9, relevant for our purpose, provides as under :-

9. Selection of Postgraduate Students

(1) Students for postgraduate medical courses shall be selected strictly on the basis of their academic merit.

(2) For determining the academic merit, the university/institution may adopt any one of the following procedures both for degree and diploma courses :-

(i) On the basis of merit as determined by a competitive test conducted by the State Government or by the Competent authority appointed by the State Government or by the university/group of universities in the same State; or

(ii) On the basis of merit as determined by a centralized competitive test held at the national level; or

(iii) On the basis of the individual cumulative performance at the first, second and third MBBS examinations, if such examinations have been passed from the same university; or

Provided that wherever entrance test for postgraduate admission is held by a state government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50 percent for general category candidates and 40 percent for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes:

Provided further that in non-government institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty percent by the management of the institution on the basis of merit.

(emphasis supplied)

3. The first proviso to Regulation 9 in its present form was introduced with effect from 20.9.2001. Earlier the first proviso required the minimum percentage of marks for eligibility as 50 per cent for all the categories of candidates.

4. In the first week of March 2002 the University of Rajasthan published a notification announcing the holding of pre-PG examination on 21.4.2002. The minimum qualifying marks were notified as 50 per cent for general category candidates and 40 per cent for SC/ST/OBC candidates consistently with the first proviso to Regulation 9. The examination was held on 21.4.2002. The result of the examination was declared on the next day.

5. On 29.4.2002 several in-service doctors (i.e. the graduate doctors who were serving under the State of Rajasthan) filed a writ petition laying challenge to the constitutional validity of the first proviso to Regulation 9 and seeking its being declared ultra vires in its applicability to in-service candidates. In the alternative, it was prayed that the first proviso abovesaid be declared as inapplicable insofar the seats meant for in-service candidates in postgraduate medical courses are concerned. Consistently with such declaration it was prayed that the result be declared afresh and that the in-service candidates be declared to have qualified for entrance in PG degree/diploma courses without insisting on the prescribed minimum qualifying marks. Several such writ petitions were filed. It is significant to note that the writ-petitioners before the High Court were all such doctors who were serving in the State services and who had participated in the pre-PG examination but had failed in securing the minimum qualifying marks as prescribed by the first proviso to Regulation 9 and the notification dated 2nd March, 2002. The High Court issued rule nisi and also passed an interim order to the effect that the unfilled seats in the in-service category shall be kept vacant during the pendency of the proceedings.

6. The

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2003 Supreme(SC) 902

Cases Referred (3)