BY SENIOR ADVOCATE
SRI.O.V.RADHAKRISHNAN BY ADVS.SRI.M.P.PRAKASH SRI.K.M.AUGUSTINE
FOR RESPONDENT(S) :
1. KERALA UNIVERSITY OF HEALTH
SCIENCES, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., TRISSUR, PIN -
680 596.
2. DENTAL COUNCIL OF INDIA
REPRESENTED BY THE SECRETARY AIWAN-E-GALIB MARG, KOTLA ROAD NEW DELHI -110 002.
3. STATE OF KERALA REPRESENTED BY
ITS SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM PIN - 695 001.
4. PARIYARAM DENTAL COLLEGE
REPRESENTED BY ITS PRINCIPAL PARIYARAM MEDICAL COLLEGE P.O., PARIYARAM, KANNUR,
PIN - 670 503.
5. KANNUR DENTAL COLLEGE
REPRESENTED BY ITS PRINCIPAL, ANJARAKKANDY P.O., KANNUR DISTRICT PIN - 670 612.
6. CENTRAL INTERNATIONAL
INSTITUTE OF DENTAL SCIENCES AND RESEARCH CENTRE, KASARAGODE, REPRESENTED BY
ITS PRINCIPAL THEKKIL BRIDGE, POINACHI P.O., KASARAGODE, PIN - 671 541.
R1 BY ADV. SRI.P.SREEKUMAR, SC R2
BY ADV. SRI.TITUS MANI VETTOM, SC R3 BY GOVT.PLEADER SRI. R. RANJITH
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
1ST PETITIONER.
EXT.P2 PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
2ND PETITIONER.
EXT.P3 PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
3RD PETITIONER.
EXT.P4 PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
4TH PETITIONER.
EXT.P5 PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
5TH PETITIONER.
EXT.P6 PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
6TH PETITIONER.
EXT.P7 PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
7TH PETITIONER.
EXT.P8 PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
8TH PETITIONER.
EXT.P9 PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
9TH PETITIONER.
EXT.P10 PHOTOCOPY OF THE
EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE
10TH PETITIONER.
EXT.P11 TRUE EXTRACT COPY OF THE
REVISED REGULATIONS OF THE RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES,
KARNATAKA.
EXT.P12 TRUE EXTRACT COPY OF THE
ORDINANCE ISSUED BY THE DELHI UNIVERSITY.
EXT.P13 TRUE EXTRACT COPY OF THE
RULES/REGULATIONS ISSUED BY THE ANUSANDHAN UNIVERSITY, BHUVANESWAR.
EXT.P14 TRUE EXTRACT COPY OF THE
RULES/REGULATIONS ISSUED BY THE IST RESPONDENT UNIVERSITY.
EXT.P15 COPY OF THE CORRIGENDUM
NOTIFICATION DATED 21.5.2013 OF THE 1ST RESPONDENT UNIVERSITY. EXT.P16 COPY OF
THE REVISED BDS REGULATIONS, 2007 ISSUED BY THE 2ND RESPONDENT.
EXT.P17 COPY OF THE AMENDMENT
REGULATIONS ISSUED BY THE 2ND RESPONDENT.
EXT.P18 TRUE EXTRACT COPY OF THE
RULES/REGULATIONS OF MBBS COURSE ISSUED BY THE IST RESPONDENT UNIVERSITY.
EXT.P19 TRUE EXTRACT COPY OF THE
RULES/REGULATIONS OF BAMS COURSE ISSUED BY THE IST RESPONDENT UNIVERSITY.
EXT.P20 TRUE EXTRACT COPY OF THE
RULES/REGULATIONS OF BHMS COURSE ISSUED BY THE IST RESPONDENT UNIVERSITY.
EXT.P21 TRUE EXTRACT COPY OF THE
RULES/REGULATIONS OF B.PHARM COURSE ISSUED BY THE IST RESPONDENT UNIVERSITY.
EXT.P22 TRUE EXTRACT COPY OF THE
RULES/REGULATIONS OF B.SC NURSING COURSE ISSUED BY THE IST RESPONDENT
UNIVERSITY.
JUDGMENT
The petitioners are all students
of different Dental Colleges pursuing their studies in the degree course of
Bachelor of Dental Surgery
('BDS' for short). They are persons who have failed
to clear all the subjects of the II Year BDS. They had appeared for the
Supplementary Examinations
of the second year also and have failed. Some of the
petitioners had joined the course in the year 2010. Others have joined the
course in the year 2011. They could pass their I Year examinations only in
their supplementary examinations. For such persons who qualify only through the
supplementary examinations, a supplementary batch is formed by the different
colleges. They all are in the supplementary batch.
2.
The third year BDS classes have
commenced on 11.6.2014. However, the petitioners have not been permitted to
attend the III year BDS classes for the reason the they have not passed all the
subjects of their II year BDS examinations. As per the Regulations of the
University, they would be permitted to attend the III year BDS classes only
after they pass in all the papers of the II year BDS. According to the
petitioners, they are ready to appear for the supplementary examinations that
are scheduled to be held during the course of the academic year 2014-2015. Even
if they clear all the papers of the II year BDS examinations, they would not be
in a position to appear for the III year BDS examinations during the current
academic year if they are prevented from attending the classes of the III year
BDS for the reason that they would not be able to secure 75% attendance, which
is necessary to be eligible to appear for the examination. If they are not able
to appear for the III year examinations during the current year, they would
lose one more year, it is pointed out. Such a consequence would be unjust and
would prejudicially affect the future prospects of the petitioners, it is
contended. Therefore, they seek the issue of appropriate directions permitting
them to attend the III year BDS classes. They also challenge the Regulations of
the University and contend that the Regulations in so far as they prevent
students who have not passed in all the subjects of the II year BDS from
attending the III year classes, are arbitrary, unsustainable and liable to be
set aside.
3. According to the learned
Senior Counsel Shri. O.V.Radhakrishnan, who appears for the petitioners the
Dentists Act, 1948
(hereinafter referred to as the 'Act for short)
Is a Central
enactment that provides for the regulation of the profession of dentistry, as
well as the courses of study that would enable a person to acquire the
qualifications necessary for practise of the profession of dentistry. For the
purpose of regulating the profession and the courses of study, the Act has constituted
the Dental Council of India.
Section 20 of the Act confers power on the Dental
Council of India to frame regulations and to prescribe inter alia, the standard
curriculum for the training of dentists and dental hygiene and the conditions
for admission to such courses of study. The Section also confers power on the
Dental Council to prescribe the standards of examinations and other
requirements to be satisfied for acquiring the qualifications and for obtaining
recognition under the Act.
According to the learned Senior Counsel, Ext.P16 is
the Regulations for the Degree of Bachelor of Dental Surgery (BDS). As per the
Regulations, it is contended that, any candidate who fails in one subject in an
examination is permitted to go to the next higher class, subject to the
condition that he should appear for the subject and complete it successfully
before he appears for the next higher examination. Therefore, a failed
candidate need only clear the subject in which he has failed before he appears
for the next higher examination, according to the Senior Counsel. Ext.P16
Regulations have been issued under the Dentists Act, a law enacted by the Union
Parliament. Under Entry 66 of List I the State has no power to enact a law that
is repugnant to any provision of the said enactment or the Regulations made
under it. Therefore, according to the learned Senior Counsel, the Regulations
framed by the first respondent Univeristy, evidenced herein by Ext.P14 as well
as the Corrigendum Ext.P15 have to yield to the stipulations contained in
Ext.P16 regulations framed under the Central Enactment. Consequently, the
petitioners are entitled to pursue their studies by attending the classes of
the III year BDS course, subject of course to the rider that they should clear
all the subjects of the II year BDS before they could be permitted to appear
for their III year BDS examinations. Various decisions of the Hon'ble Supreme
Court are also pressed into service, to drive home the contention that the
Regulations framed under Section 20 of the Central Legislation would override
the stipulations contained in Exts.P14 and P15. In view of the repugnancy with
Ext.P16 Regulations, it is contended that Exts.P14 and P15 to the extent they
are inconsistent with Ext.P16, are liable to be set aside.
4. A statement has been filed by
the counsel for the first respondent refuting the contentions of the
petitioners in the writ petition. According to the first respondent, the Dental
Council of India prescribes only the broad parameters that are necessary to be
complied with while conducting a BDS Course. The details of the course of study
as well as the conduct of the course are all left to be determined by the
respective Universities that conduct the course. According to Adv.P.Sreekumar
who appears for the Unniversity, during the first two years of the BDS Course,
the students are taught the basic theory subjects in which a thorough knowledge
is necessary before they could embark upon any further study. During the III
year the students have to attend clinical study apart from the theory. They are
also permitted to treat patients under the strict supervision of their
teachers, for which a thorough knowledge of the theoretical aspects is
absolutely necessary. It is for the said reason that, students who have not
passed all the subjects in the II year are not permitted to attend the III year
classes. However, a student who does not pass any of the subjects of his I year
examinations is permitted to attend the II year classes. Therefore a student
would get the first two years to clear all the papers of the I and II year.
With reference to the contention of the petitioners that in various other
Universities students are permitted to attend the III year classes even in
cases where they fail in one of the subjects of the II year examinations, it is
contended that the system followed in each University is different. Exts.P11 to
P13 would show that even the duration of the course is different as far as the
first respondent is concerned. The Dental Council only sets a Bench Mark. It is
permissible for each University to make necessary changes to suit the
requirements of the course that is offered. The scheme of examinations, the
manner of evaluation of the necessary papers etc. are all matters within the
exclusive domain of each University. Therefore, it is contended that, Exts.P14
and P15 are perfectly valid and legal. The learned counsel for the University
also places reliance on the decisions of the Hon'ble Supreme Court in
Visveswaraiah Technological University & Another v. Krishnendu Halder and
others {(2011) 4 SCC 606} as well as the decision of a Division Bench of this
Court in Ashar v. Kerala University of Health Sciences {2014(1) KLT 969} to
contend that, prescription of higher standards by the University is permissible.
5. Adv. Titus Mani Vettom appears
for the second respondent Dental Council of India. According to the counsel,
the second respondent only stipulates a minimum standard that has to be
strictly adhered to by the various Universities. However, each University is at
liberty to insist on higher standards for the purpose of maintaining excellence
in education. As long as the minimum standards are maintained, the second
respondent has no objection in higher standards being insisted upon. Therefore,
there is no repugnancy with the regulations framed by the Dental Council, where
higher standards are insisted upon.
6. This writ petition is not
admitted. Since it was represented that the matter is urgent, where the future
of the students are at stake, the University was granted time to file a
statement. Elaborate arguments have been addressed by the learned counsel
appearing for the contesting parties. It is agreed by all that the writ
petition itself could be disposed of finally. Therefore, I have heard the
matter and have considered the contentions advanced before me anxiously.
7. It is true that the Act
regulates the profession of dentistry. For the purpose of regulation of the
profession, the second respondent Dental Council of India has been constituted
under the provisions of the Act. Ext. P16 is a copy of the Regulations framed
under the Act which regulates inter alia, the conduct of the BDS course also.
The contention that requires to be considered is whether the provisions of
Ext.P16 would invalidate the provisions of the University Regulations, Exts.P14
and P15 in so far as they are in conflict with the former. The question as to
whether there is any repugnancy at all, requires to be considered.
8.
Entry 25 of List III of the
Constitution of India
reads as follows:-
"Education, including
technical education, medical education and universities, subject to the
provisions of entries 63, 64,65 and 66 of List I; vocational and technical
training of labour."
The above entry expressly
stipulates that, the power available under the above entry shall be subject to
the powers under Entries 63, 64, 65 & 66 of List I. Thereore, there cannot
be any doubt that a law enacted by the Union Parliament under any one of the
said entries would have precedence over any State law made under Entry 25 list
III.
9.
The Dentists Act, 1948 would
therefore enjoy precedence over any State law made in exercise of the power
under the above entry. The law made by the Parliament would prevail also in
view of Article 254 (1) of the Constitution. Therefore, in the event of any
repugnancy, there need not be any doubt that, the provisions of Dentists Act,
1948 would prevail.
10.
Section 20 the Act confers
the power to make regulations.
Section 20 in so far as it is relevant for our
purposes is extracted hereunder:-
"20. Power to make
regulations:---(1) The Council may, with the approval of the Central
Government, make regulations not inconsistent with the provisions of this Act
to carry out the purposes of this Chapter.
(2) In particular and without
prejudice to the generality of the foregoing power such regulations may---
* * * * * * * *
(g) prescribe the standard
curricula for the training of dentists and dental hygienists, and the
conditions for admission to courses of such training;
(h) prescribe the standards of
examinations and other requirements to be satisfied to secure for the
qualifications recognition under this Act;
(i) any other matter which is to
be or may be prescribed under this Act; Provided that regulations under clauses
(g) and (h) shall be made after consultation with Governments."
The above provision confers power
on the Dental Council of India to prescribe standards not only for the
curriculam of training for dentists but also to prescribe standards for
examinations. It is in exercise of the said power that the second respondent
has framed Ext.P16 regulations. Ext.P16 deals with the scheme of examinations.
The relevant portion thereof is reproduced hereunder for convenience of
reference:-
"SCHEME OF EXAMINATION:
The scheme of examination for BDS
Course shall be divided into 1st B.D.S. examination at the end of the first
academic year, 2nd BDS examination at the end of second year, 3rd BDS
examination at the end of third, 4th BDS at the end of 4th and final BDS at the
end of 5th year.
(1) Universities shall organize
admission timings and admission process in such a way that teaching starts from
1st day of August in each academic year.
I. BDS Examination:-
1. General anatomy including
embryology and histology
2. General human physiology and
biochemistry
3. Dental Anatomy, Embryology and
Oral Histology
Any student who does not clear
the first BDS University Examination in all subjects within 3 years from the
date of admission, shall be discharged from the Course. Any candidate who fails
in one subject in an Examination is permitted to go to the next higher class
and appear for the subject and complete it successfully before he is permitted
to appear for the next higher examination.
II BDS Examination
A candidate who has not
successfully completed the 1st BDS examination cannot appear in the II year
Examination
1. General pathology and
Microbiology
2. General and dental
pharmacology and therapeutics
3. Dental Materials
4. Pre Clinical Conservative -
only practical and Viva Voce
5. Pre Clinical Prosthodontics -
only Practical and Viva Voce
III BDS Examination:
A candidate who has successfully
completed the 2nd BDS examination can appear
III BDS Examination
1. General Medicine
2. General Surgery
3. Oral Pathology and Oral
Microbiology"
11. What is important to be taken
note of from the scheme extracted above is that, after the subjects of I BDS
examinations are listed, it is stipulated that, any student who does not clear
the I BDS University examinations in all subjects "within three years from
the date of admission shall be discharged from the course." Therefore, it
is mandatory that a student should pass in all the subjects of I BDS within an
outer limit of three years of the date of admission. There is a further
stipulation, which states that a candidate who fails in one subject in an
examination is permitted to go to the next higher class and appear for the
subject and complete it successfully before he is permitted to appear for the
next higher examination. According to learned Senior Counsel Shri.
O.V.Radhakrishnan, the above stipulation makes it abundantly clear that every
student is permitted to go to the next higher class subject to the only
condition that he would not be permitted to appear for the next higher
examination unless he obtains a pass in the failed subject. Therefore, it is
contended that the petitioners are entitled to attend the III year BDS classes
taking the benefit of the above provision. The standing counsel for the first
respondent on the other hand contends that the stipulations referred to above
apply only to the I year BDS examination. A perusal of the Regulations shows
that the contention of the counsel for the first respondent is right.
12. It is worth noticing from
what is extracted above that, there are various stipulations made in the case
of each of the examinations. In the case of I year BDS examination, as already
noticed above, it is stipulated that a candidate has to clear his I year
subjects within three years of the date of his admission. The further
stipulation that a candidate who fails in one subject in an examination is
permitted to go to the next higher class follows the above clause. The same is
part of the section dealing with the I year BDS examination. In the case of II
BDS Examination what is stipulated is that a candidate who has not successfully
completed the I BDS examination cannot appear for the II BDS examination. In
the case of the III BDS examination also, a stipulation on the same terms
appear. Had it been the intention that a candidate would be permitted to go to
the next higher class even where he fails in one of the subjects in the lower
class, the stipulation would have found a place after the details regarding the
V BDS Examination. It could also have been placed before the sections dealing
with the individual examinations. The fact that the said stipulation has been
made part of the conditions attached to the I BDS examination leads to the
irresistible conclusion that the same is intended to apply only to the I BDS
examination. For the above reason, the contention of the petitioners that, by
virtue of the stipulation in Ext.P16 they are entitled to attend the classes of
the III year BDS course is rejected.
13. The next contention of the
counsel for the petitioners is founded on the premise that Ext.P16 permits them
to attend the III year BDS classes. Ext.P14 regulations framed by the first
respondent University makes the following stipulations:-
"k) Allowed to Keep Terms
(A.T.K.T)" A candidate who fails in one subject in an examination, except
in the second year, is permitted to go to the next higher class. But he/she has
to pass that failed subject in order to be eligible to appear for the
examination of the next higher class. Since clinical study in the third year
involves treatment on patients under the guidance of faculty it is mandatory
that the candidate should clear all the subjects of Second year including
preclinical practical examinations before he can be promoted to third year. A
student will be eligible to appear for Final Year Part II examination only if
he/she has appeared for final year part I examination. He/she can appear for
the failed subjects (if any in part I) along with the final year part II
examination."
(Emphasis supplied)
The above provision puts a
restriction on the right of a student to attend the III year classes by
providing that a student who does not clear all the subjects of the II year
would not be allowed to attend the higher classes. The above provision has been
modified by issuing Ext.P15 Corrigendum, the relevant portion of which is
extracted hereunder for convenience of reference:-
CORRIGENDUM
"The Faculty of Dental
Science in its meeting dated 5.3.13 has resolved to modify clause 10(j) of the
regulations of BDS Course as follows i) In clause10(j) of the regulations of
BDS it is mentioned that a candidate who fails in one subject in an
examination, except in the second year, is permitted to go to the next higher
class. But he/she has to pass that failed subject in order to be eligible to
appear for the examination of the next higher class. Since clinical study in
the third year involves treatment on patients under the guidance of faculty it
is mandatory that the candidate should clear all the subjects of Second year
including preclinical practical examinations before he can be promoted to third
year....is modified as ii Students failing in any one of the Pre clinical
practical subjects (Pre Clinical Conservative Dentistry, Pre Clinical
Prosthodontics and Crown and Bridge, Pre Clinical Orthodontics may be allowed
to carry over the failed subject. Such students may be promoted to the third
year BDS course, but their clinical posting in the failed subject will be
withheld until they pass the preclinical subject in the supplementary
examination. Moreover such students can appear for the third BDS examination
only after passing the failed practical examination. There shall be no carry
over for General Pathology and Microbiology, General and Dental Pharmacology
and Therapeutics and Dental Materials."
By virtue of the above
regulations, the first respondent has prohibited students who have not cleared
all their papers of the II BDS examination from attending the III BDS classes.
It is pointed out that, the above stipulation runs counter to the stipulations
in Ext.P16 regulations. Therefore, it is contended that Exts.P14 and P15 to
extent they are inconsistent with Ext.P16 are liable to be set aside.
14. The learned Senior Counsel
Shri. O.V. Radhakrishnan places reliance on the decision in
Medical Council of
India v. State of Karnataka and others {(1998) 6 SCC 131}
That was a case in
which, the power of the Medical Council of India to fix the intake for
admission of students to the various medical colleges in the State of Karnataka
was under challenge. The case related to admission to the MBBS course. Placing
reliance on an earlier decision it has been held in the said case that, where
there is a Central enactment with respect to co- ordination and determination
of standards, that would prevail over a State law by virtue of first part of
Article 254(1). With respect to regulations framed by the Medical Council under
the Medical Council Act it has been held that it would have mandatory force. It
has been clarified in paragraph 31 of the said judgment that, what has been
stated in the said judgment about the authority of the Medical Council under
the Indian Medical Council Act would equally apply to the Dental Council under
the Dentists Act.
15. The decision of the Apex
Court in
Jaya Gokul Educational Trust v. Commissioner & Secretary to
Government Higher Education Department {(2000) 5 SCC 231}
is relied upon to
contend that
Any State law that is repugnant to a Central enactment made in
exercise of the power under Entry 66 of List I of the Constitution would be
invalid to the extent of such repugnancy. The question in the said case related
to the power of the All India Council for Technical Education (AICTE) under the
All India Council for Technical Education Act, 1987.
16. In the decision of
Bharati
Vidyapeeth (Deemed University) v. State of Maharashtra {(2004) 11 SCC 755}
the
Hon'ble Supreme Court has considered the
Scope of the power under Entry 66 List
I vis-a-vis Entry 25 List III.
It has been explained that
The expression
"Coordination" used in Entry 66 List I is not confined to mean mere
"evaluation." It means harmonisation with a view to forge a uniform
pattern for a concerted action according to a certain design, scheme or plan of
development. It, therefore, includes action not only for the removal of
disparities in standards but also for preventing the occurrence of such
disparities. It will include all action intended to formulate a uniform pattern
for a concerted action in accordance with a certain design, scheme or plan of
development. It will include the power to do all things, which are necessary to
prevent what would make "coordination" either impossible or
difficult. This power is absolute and unconditional and in the absence of any
valid or compelling reasons it must be given its full effect according to its
plain and express intention.
It has been further held as follows in paragraph
20 of the said decision:-
"At this stage we must
strike a note of caution in regard to institutions which are exclusively owned
by the Government and in respect of institutions which stand affiliated to the
university or in respect of institutions to which either affiliation or grant
is made. Such institutions may be controlled to an extent by the State in
regard to admission as a condition of affiliation or grant or owner of the
institutions. But those conditions, again if they are in respect of the
institutions of higher education must apply the standard prescribed by the
statutory authorities such as UGC, Medical Council, Dental Council, AICTE,
governed by Entry 66 of List I of the Constitution."
It is therefore clear from the
above decision that,
The regulations framed by the Central Controlling Agency
is binding on the Universities as well as the Colleges that offer the various
professional courses that are so controlled.
However, the question still
remains, whether the standards so fixed are to be scrupulously adhered to,
without any change whatsoever. It has been held by the Hon'ble Supreme Court,
The standards stipulated by the central agencies like the Indian Medical
Council as well as the Dental Council are only the minimum standards that are
necessary to be maintained at any cost. However, in order to achieve excellence
in education it has been held that it is permissible to insist on higher
standards.
17. A Constitution Bench of the
Hon'ble Supreme Court has considered the question in
Dr. Preeti Srivastava and
Another v. State of Madhya Pradesh and others {(1999) 7 SCC 120}
After
considering the directions issued by the Indian Medical Council under the
provisions of the
Indian Medical Council Act, 1956
the issue regarding the
Binding nature of the regulations issued
has been concluded by the Hon'ble Supreme
Court in the following words:-
"The Scheme of the Indian
Medical Council Act, 1956 does not give an option to the universities to follow
or not to follow the standards laid down by the Indian Medical Council. For
example, the medical qualifications granted by a university or a medical
institution have to be recognised under the Indian Medical Council Act, 1956.
Unless the qualifications are so recognised, the students who qualify will not
be able to practise. Before granting such recognition, a power is given to the
Medical Council under Section 16 to ask for information as to the courses of
study and examinations. The universities are bound to furnish the information
so required by the Council. The postgraduate Medical Committee is also under
Secion 17, entitled to appoint Medical Inspectors to inspect any medical
institution, college, hospital or other institution where medical education is
given or to attend any examination held by any university or medical
institution before recommending the medical qualification granted by that
university or medical institution. Under Section 19, if a report of the
committee is unsatisfactory the Medical Council may withdraw recognition
granted to a medical qualification of any medical institution or university concerned
in the manner provided in Section 19. Section 19-A enables the Council to
prescribe minimum standards of medical education required for granting
recognised medical qualifications other than postgraduate medical
qualifications by the universities or medical institutions, while Section 20
gives a power to the Council to prescribe minimum standards of postgraduate
medical education. The universities must necessarily be guided by the standards
prescribed under Section 20(1) if their degrees or diplomas are to be
recognised under the Medical Council of India Act."
18. The question as to
Whether
the minimum eligibility criteria could be relaxed for the purpose of filling up
unfilled seats in a particular year
came up for consideration before the
Hon'ble Supreme Court in
Visveswaraiah Technological University v. Krishnendu
Halder {(2011)4 SCC 606}
Relying on the decision in Dr. Preeti Srivastava v.
State of M.P. (supra) the Apex Court has while summarising the position
emerging from the dicta in the various decisions on the point held in paragraph
14 as follows:-
"The respondents (colleges and the students) submitted
that in that particular year (2007-2008) nearly 5000 engineering seats remained
unfilled. They contended that whenever a large number of seats remained
unfilled, on account of non- availability of adequate candidates, paras 41(v)
and (vi) of Adhiyaman would come into play and automatically the lower minimum
standards prescribed by AICTE alone would apply. This contention is liable to
be rejected in view of the principles laid down in the Constitution Bench
decision in Dr. Preeti Srivastava and the decision of the larger Bench in S.V.
Bratheep which explains the observations in Adhiyaman in the correct
perspective. We summarise below the position, emerging from these decisions :
(i) While prescribing the
eligibility criteria for admission to institutions of higher education, the
State/University cannot adversely affect the standards laid down by the Central
Body/AICTE. The term 'adversely affect the standards' refers to lowering of the
norms laid down by Central Body/AICTE. Prescribing higher standards for
admission by laying down qualifications in addition to or higher than those
prescribed by AICTE, consistent with the object of promoting higher standards
and excellence in higher education, will not be considered as adversely
affecting the standards laid down by the Central Body/AICTE.
(ii) The observation in para
41(vi) of Adhiyaman to the effect that where seats remain unfilled, the State
authorities cannot deny admission to any student satisfying the minimum
standards laid down by AICTE, even though he is not qualified according to its
standards, is not good law.
(iii) The fact that there are
unfilled seats in a particular year, does not mean that in that year, the
eligibility criteria fixed by the State/University would cease to apply or that
the minimum eligibility criteria suggested by AICTE alone would apply. Unless
and until the State or the University chooses to modify the eligibility
criteria fixed by them, they will continue to apply in spite of the fact that
there are vacancies or unfilled seats in any year. The main object of
prescribing eligibility criteria is not to ensure that all seats in colleges
are filled, but to ensure that excellence in standards of higher education is
maintained.
(iv) The State/University (as
also AICTE) should periodically (at such intervals as they deem fit) review the
prescription of eligibility criteria for admissions, keeping in balance, the
need to maintain excellence and high standard in higher education on the one
hand, and the need to maintain a healthy ratio between the total number of
seats available in the State and the number of students seeking admission, on
the other. If necessary, they may revise the eligibility criteria so as to
continue excellence in education and at the same time being realistic about the
attainable standards of marks in the qualifying examinations."
19. A similar question had come
up for the consideration of a Division Bench of this Court where the action of
the first respondent University in prescribing a separate minimum marks of 50%
in theory papers alone apart from the total prescribed combined minimum marks
of theory and practical examination was challenged. After considering the issue
this Court has in
Ashar v. Kerala Univeristy of Health Sciences {2014(1) KLT
969}
held that the
University had the power to prescribe the higher
qualification.
The Division Bench has held as follows in paragraph 18 of the
said decision:-
"We must notice in this
regard that as contended by the learned counsel for the Medical Council of
India the standard fixed by the Medical Council purports to be the minimum
standard. Therefore, nothing prevents the University from prescribing higher
standards. The question of fixing higher standard may have arisen in the
context of cases which related to admission of students. We are of the clear
view that the principle of the decision is the presence of power of the State
or University traceable to Entry 25 of the List III of the Seventh Schedule.
Therefore, the prescription of higher standard cannot be limited to the stage
of admission. Once power of prescribing higher standard is ceded to the State
or University, the higher standard can be prescribed even at the stage of
examinations and in relation to the same."
20.
The position that emerges
from the dicta in the decisions referred to above is that, the central
professional regulatory bodies like the second respondent prescribe only the
minimum standards that are to be scrupulously adhered to. The Union Parliament
being sufficiently empowered under Entry 66 List I of the Constitution, the
Central enactment prescribing such standards, as well as the regulations framed
under such enactment would prevail over any enactment or regulations framed
thereunder in exercise of the power under Entry 25 List III, in cases of
repugnancy. However, since the central regulatory body like the second
respondent frames only the minimum standards, it is open to the State
Government as well as the Universities to frame regulations prescribing higher
standards of excellence. Prescription of such higher standards cannot be said
to constitute repugnancy with the regulations framed under the Central
enactment. Therefore, any attack on a regulation framed under a State enactment
would have to fail where it is found that what are prescribed are higher
standards. In the present case the stipulations contained in Exts.P14 and P15
are higher standards since they stipulate that only a student who has passed in
all the subjects of the II BDS examinations shall be allowed to attend the
classes of the III year BDS. The said stipulation is insisted upon with the
object of ensuring that students who are permitted to attend on patients and to
treat them, under the supervision of their teachers, are persons who have
acquired proficiency in all the theory subjects by obtaining pass marks in the
II BDS Examinations. The said stipulations are not in conflict with the
regulations framed by the Dental Council of India, Ext.P16. In view of the fact
that prescription of a higher standard does not constitute repugnancy, the
challenge against Exts.P14 and P15 has to fail.
For the above reasons, I do not
find any grounds to entertain this writ petition or to grant any of the reliefs
sought for. The writ petition fails and is accordingly dismissed.
