The court upheld the constitutional validity of Rule 1.20(9) and declared Rule 1.8(2) as ultra vires for being violative of Post Graduate Medical Education Regulations, 2000 and counter to the decision in Gopal D. Tirthani (supra).

DIPAK MISRA, J. :- By this writ petition the petitioner has challenged the constitutional validity of the Rules 1.8 and 1.20(9) of M. P. Medical and Dental Post Graduate Course Entrance Examination Rules, 2008 (in short 'the Rules').

2. As far as the Rule 1.8 is concerned this Court in Animesh Gupta v. State of M. P. and others (W. P. No. 3795/2008 and other connected matters) has held as under :

"10. First we shall deal with the validity of the Rule 1.8. The said Rule reads as under :

"1.8 Reservation :

1.8 (2) The minimum percentage of marks in Pre P. G. Entrance Examination for eligibility for admission to Post Graduate Medical and Dental Courses shall be 40% for SC/ ST/OBC candidates and 50% for Unreserved category candidates. While preparing the merit list of Non-Service candidates for Medical (MD and MS) Course, the Board shall calculate 50% pro rata of the total marks obtained in MBBS Part-I and Part II and add it to the marks obtained in Pre-PG Entrance examination.

Note : The merit list of Non-Service candidates for Medical (MD and MS) course shall be prepared through pro rata rule.

Non-Service candidate's applying for Medical MD and MS course shall have to mention their MBBS final Professional Part-I and Part-II marks along with the maximum marks in the OMR Application Form.

The marks obtained in Part I and Part II will be added and the percentage with the total maximum marks of Part-I and Part-II will be calculated.

50% of the percentage of marks so calculated will be then added to the marks obtained in the test. Thereafter the merit list will be prepared by the Board.

The pro rata rule will not be applicable to In-Service and Candidates applying for MDS course. For such candidates, only the marks obtained in the Pre-PG entrance examination shall be taken into account.

The maximum marks for different courses will be as follows :

Sr. No. Candidate/Course Maximum Marks

1. Non-service (MD and MS) 200 - Written Test 50 - Marks obtained through Pro rata Rule

250

250

3. Non-Service (MDS) 200 - Written Test 200

2. In-service (MD and MS and MDS)

200 - Written Test 50 - marks obtained for Rural / Tribal Service

11. It is not disputed that there are more than one university in the State of Madhya Pradesh. In State of M. P. and others v. Gopal D. Tirthani and others, AIR 2003 SCW 3636 it has been held as under :

"38. In the examination held in the year 2003, in the category of in-service candidates, 36 have qualified. They have taken the common entrance test along with open category candidates and they have also secured the minimum qualifying marks as prescribed by MCI Regulations. In the quota of in-service candidates, 53 seats still remain vacant. It was stated at the Bar that there are many who could not apply because of the confusion that was prevailing on account of pendency of writ petitions in the High Court and declaration of results of the entrance examination having been stayed by the interim order of the High Court passed in the previous batch of writ petitions. Even the State Government was in a state of fix and did not process the sponsorship applications of in-service candidates. Those 108 in-service candidates, who had applied for participation in Pre-PG Test 2003, did so without sponsorship and the High Court has directed admission being allowed to 36 successful in-service candidates by processing their sponsorship ex post facto. Suitable directions need to be given to take care of interest of in-service candidates qua Pre-PG Test 2003."

12. In view of the aforesaid enunciation of law we have no shadow of doubt that Rule 1.8(2) which provides for preparation of merit list of non-service candidates for Medical (MD and MS) course calculating 50% pro rata of the total marks obtained in MBBS Part I and Part II and adding it to the Marks obtained in the Pre-PG Entrance examination, is impermissible, being counter to the law laid down in the case of Gopal D. Tirthani (supra) and, therefore, it is declared as ultra vires.

13. Th