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2009 Supreme(Bom) 607
BOMBAY HIGH COURT AT PANAJI, GOA
B.P. DHARMADHIKARI AND U.D. SALVI, JJ.
Shri Gaurav Uday Nagarsekar - Petitioner
Versus
State of Goa & Ors. - Respondents
Writ Petition No. 208 of 2009
Decided on: 4th May, 2009
Advocate Appeared
Mr. Mahesh Sonak, Advocate with Mr. N. Vaze. Advocate, for the petitioner
Mr. S.S. Kantak, Advocate General with Ms. S. Mordekar, Addl. Government Advocate for respondent Nos. 1 and 2
Mr. C.A. Ferreira, Asst. Solicitor General for respondent No.3
Mr. Nitin Sardessai. Advocate with Mr. Deep Shirodkar, Advocate for the respondent Nos. 4 to 7
respondent No.8-Absent.
The field of educational qualifications for admission to post-graduate courses in dentistry is fully occupied by the Dental Council of India (DCI) under Entry 66 of List I of Schedule VII of the Constitution of India, and the State Government does not have the power to prescribe additional qualifications under Entry 25 of List III of Schedule VII of the Constitution of India.
Headnote:
MDS COURSE ADMISSION - QUALIFICATION - REVISED MDS COURSE REGULATIONS 2007 - DENTAL COUNCIL OF INDIA - ENTRY 25 OF LIST III OF SCHEDULE VII OF CONSTITUTION OF INDIA - ARTICLE 14 OF CONSTITUTION OF INDIA - ARTICLE 162 OF THE CONSTITUTION OF INDIA - ARTICLE 254 OF CONSTITUTION OF INDIA - ARTICLE 246 OF CONSTITUTION OF INDIA - ENTRY 66 OF LIST I - ENTRY 25 OF LIST III - SECTION 20(2) OF THE DENTIST ACT, 1948 - SECTION 26(1)(A) OF UGC ACT - GOA (RULES FOR ADMISSION TO POST GRADUATE DEGREE COURSES OF THE GOA UNIVERSITY AT THE GOA DENTAL COLLEGE AND HOSPITAL) RULES, 1998 - DENTAL COUNCIL OF INDIA REGULATIONS, 2007 - REPUGNANCY - HIGHER QUALIFICATION - ADDITIONAL QUALIFICATION - MERIT - SELECTION CRITERIA - ADMISSION PROCESS - PROSPECTIVE APPLICATION OF JUDGMENT - WRITS ISSUED.
Fact of the Case:
Petitioner, a student, challenged the requirement of possessing 60% marks in the subject of specialty imposed by the State Government for admission to MDS Course for the Academic Year 2009-2010. The petitioner contended that the said requirement was repugnant to the norms prescribed by the Dental Council of India (DCI) and hence could not operate. The State Government, on the other hand, argued that it had the power to prescribe additional qualifications under Entry 25 of List III of Schedule VII of the Constitution of India and that the impugned qualification was not derogatory of the qualifications prescribed by the DCI.
Finding of the Court:
The Court held that the requirement of possessing 60% marks in the subject of specialty was repugnant to the norms prescribed by the DCI and hence could not be sustained. The Court further held that the State Government did not have the power to prescribe additional qualifications under Entry 25 of List III of Schedule VII of the Constitution of India, as the field was fully occupied by the DCI under Entry 66 of List I. The Court also rejected the State Government's argument that the impugned qualification was a higher or additional qualification prescribed in consonance with the norms for admission prescribed by the DCI.
Issues: 1. Whether the requirement of possessing 60% marks in the subject of specialty was repugnant to the norms prescribed by the Dental Council of India (DCI)? 2. Whether the State Government had the power to prescribe additional qualifications under Entry 25 of List III of Schedule VII of the Constitution of India? 3. Whether the impugned qualification was derogatory of the qualifications prescribed by the DCI?
Ratio Decidendi: 1. The Court held that the requirement of possessing 60% marks in the subject of specialty was repugnant to the norms prescribed by the DCI because it adversely affected the norm prescribed by the DCI and eliminated a candidate who was more meritorious as per the DCI from consideration itself. 2. The Court held that the State Government did not have the power to prescribe additional qualifications under Entry 25 of List III of Schedule VII of the Constitution of India, as the field was fully occupied by the DCI under Entry 66 of List I. 3. The Court held that the impugned qualification was not a higher or additional qualification prescribed in consonance with the norms for admission prescribed by the DCI, but was in fact repugnant to those norms.
Final Decision: The Court allowed the petition and quashed the requirement of possessing 60% marks in the subject of specialty prescribed by the State Government. The Court also directed the State Government and the Dental College to issue a fresh advertisement in terms of the DCI Revised MDS Course Regulations, 2007 and complete the process of admission within four weeks.
B.P. Dharmadhikari, J.- By this petition, the petitioner-student is seeking relief of admission to MDS Course for the Academic Year 2009-2010 on the basis of the Revised MDS Course Regulations 2007, by either ignoring or striking down the requirement of possessing 60% marks in subject of speciality, imposed by respondent No.1-State Government. The petitioner is seeking admission to respondent No. 2-Goa Dental College and Hospital, which is run by the respondent No.1-State Government.
2. The contention very briefly is that as the eligibility norms are already fixed by the Dental Council of India, the norm of possessing 60% marks in subject of speciality are repugnant or destructive of those norms and hence cannot operate. In view of the grievance later on. Dental Council of India has been added as respondent No. 3 and as in the meanwhile the process of admission was over, the five students who have secured admission against six seats for Post Graduate Course have also been added as respondent Nos. 4 to 8.
3. We have heard Advocate Shri Sonak for the petitioner, learned Advocate General with Government Counsel for respondent Nos. 1 and 2. Asst. Solicitor General Mr. Ferreira. for respondent No.3-Dental Council of India and Advocate Shri Shirodkar holding for Advocate Shri Sardessai for respondent Nos. 4 to 7. Respondent No. 8 has chosen not to appear though she has been served twice in the matter. By consent, rule returnable forthwith.
4. Advocate Sonak has at the threshold contended that he is assailing the action of respondent Nos. 1 and 2 on these grounds. He contends that the field in so far as educational qualifications is concerned, is already fully occupied in view of the Dental Council of India revised MDS Course Regulations 2007, herein after referred to as 'Regulations' or "DCI Regulations" and hence there is no scope for exercising any powers under Entry 25 of List III of Schedule VII of Constitution of India. In the alternate and by way of abundant precaution, it is contended that if this Court finds that there is scope for exercise of any such powers by State Government, the impugned qualification as introduced by State Government is derogatory of the qualifications prescribed by Dental Council of India and, in any case, it dilutes said qualification and therefore must be held to be repugnant a and constitutionally unsustainable. It is contended that respondent No. 1 cannot in any way dilute or tinker with the qualifications prescribed by Dental Council of India. He also points out that respondent No.1 has not prepared any statutory instrument in this respect and the qualification of possessing 60% marks in subject of speciality, is introduced by taking recourse to Article 162 of the Constitution of India. He states that such an exercise will stand at much lower pedestal when this Court is required to consider repugnance between the Regulations and the qualifications prescribed by the State Government. He points out that respondent No.3-Dental Council of India, has come up with an affidavit mentioning that the qualifications prescribed by State Government are additional or further qualifications in consonance with the qualifications prescribed by Dental Council of India and he urges that such affidavit is of no assistance because the repugnance or otherwise is required to be considered by this Court in the light of various judgments in the matter. He further states that the petitioner made some representations to State Government pointing out the qualifications prescribed by the Regulations 2007 and requesting for deletion of requirement possessing 60% marks in subject of speciality and on 17.4.2009, the concerned competent authority i.e. Minister has actually accepted the request made by the petitioner and has directed its office to carry out necessary corrections. He contends that thus executive instructions are already directed to be amended and because of administrative lethargy, the amendment has not be
