-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 208 OF 2009 Shri Gaurav Uday Nagarsekar, aged 24 years, resident of Harshad, Opposite Shivsagar Apartments, Mangor Hill, Vasco-da-Gama-Goa-403 802 (Registered address) ...... Petitioner V e r s u s 1. State of Goa, Through its Chief Secretary, Having Office at Secretariat, Porvorim, Bardez-Goa. 2. The Dean, Goa Dental College and Hospital, (Chairman, Post Graduate MDS Course Admission Committee), Goa Dental College and Hospital, Bambolim-Goa. 3. Dental Council of India, Aiwan-e-Galib Marg, Kotla Road, New Delhi-110 002. 4. Ms. Shraddha Ulhas Shetye, 23 years, r/o. Govind Lane, No. 7, Behind Chicalim Cottage Hospital, Chicalim, Mormugao-Goa. 5. Mysore Ashwin Raghunandan, 23 years, r/o. 139/6, behind Honda Showroom, near Jaycee -2- Nagar, Curti, Ponda-Goa. 6. Ms. Gaurangi Uday Kakodkar, aged 23 years, r/o. 2247/A-3, Royal Housing Park Complex, Sanzguiri Farm, Pongirwal, Kakoda, Curchorem, Goa.403 706. 7. Ms. Nandita Nitin Keni, 25 years, r/o. 502, Heritage Royal, next to International Center, Dona Paula-Goa. 8. Dr. Jyotsna V. Mishra, D-21, Acharya Niwas, Kendriya Vidyalaya No. 2, Varuna Puri, Mangor Hill, Vasco da Gama-Goa-403 802. ...... Respondents 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. CORAM : B. P. DHARMADHIKARI & U. D. SALVI, JJ. DATE : 4 th May, 2009 . ORAL JUDGMENT (Per B. P. DHARMADHIKARI, J ) By this Petition, the petitioner-student is seeking relief of -3- 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 -4- 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 therefor must be held to be repugnant 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 -5- 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 17.04.2009, 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 been actually published and brought to notice of everybody. According to him, the DCI Rules i.e. Regulations are more rational because they meet the object of selecting better student for the Post Graduate Course and if the norms as prescribed by State Government are applied, an element of subjectivity is added to these norms which then enables the evaluating authority to victimize any -6- particular candidate. He contends that those norms prescribed by DCI are more transparent and fair and the State Government ought to have acted in terms of those norms only. Lastly, it is contended that the Medical Council of India has also issued similar norms while selecting students for Post Graduate qualifications after obtaining MBBS Degree. He contends that in so far as those students are concerned, respondent no.1 has not added such requirement of possessing 60% marks in subject of speciality. According to him, the Goa Medical College, which imparts education up to MBBS Degree and thereafter as also respondent no.2-College are both under one University and managed by respondent no.1-State Government. He contends that for the purpose of obtaining Post Graduation qualifications, students possessing MBBS Degree or MDS Degree constitute one class and the best student out of them is to be selected. For the purpose of admission, to Post Graduate Courses in Medicine, the State Government has found that the prescription by Medical Council of India is sufficient and serves the goal. He contends that only for the purpose of the students of respondent no.2-College, the artificial concept of possessing 60% marks in subject of speciality has been added and that norm does not advance the goal sought to be achieved. He has attempted to demonstrate that in fact, there is no nexus in so far as these norms and the object sought to be achieved, is concerned. He contends that there is no intelligible -7- differentia in so far as students of MBBS and BDS are concerned. Accordingly, therefore, the addition of the requirement of possessing 60% marks in subject of speciality for petitioner is violating Article 14 of Constitution of India. He has relied upon various Judgments to substantiate his contentions. 5. Asst. Solicitor General Mr. Ferreira, for respondent no.3, has contended that respondent no.3 has filed affidavit before this Court and pointed out that it views the qualifications prescribed by respondent no.1 as an additional or further qualification which is not repugnant with the qualifications prescribed by Dental Council of India. He, therefor, contends that case Law cited by petitioner in this respect is not relevant at all in this matter. 6. Learned Advocate General with learned Government Counsel has contended that the requirement of possessing 60% marks in subject speciality is in existence since 1998. He further states that though the Regulations are stated to be of the year 2007, the relevant provision prescribing the norms for eligibility has not undergone any change in 2007 and those norms are also in existence since 1998. It is therefor urged that petitioner took admission to various courses with knowledge of the additional requirement imposed by State Government -8- and has accordingly prosecuted his studies. It is further stated that the petitioner also participated in the selection process and did not approach this Court at the earliest. In these circumstances, learned Advocate General submitted that the Petition suffers from laches and deserves to be dismissed. 7. Learned Advocate General has also relied upon various Judgments including some cited by Advocate Sonak, to advance his arguments that respondent no.1-State Government can exercise its authority under Entry 25 of List III and has accordingly in exercise of those powers prescribed the requirement of possessing 60% marks in subject speciality. It is contended that those norms are not in any way inconsistent with or repugnant with the eligibility norms prescribed by Dental Council of India in its 2007 Regulations. It is contended that those norms advance the purpose of selecting better student and are in consonance with the 2007 Regulations. It is pointed out that respondent no.1- State Government has stipulated higher standards and those higher standards do not in any way militate qualification prescribed by Dental Council of India. The learned Counsel has contended that the decisions by concerned Minister on 17.02.2009, is still being examined by respondent no.1-State Government and a communication in that respect was also sent to the Dental Council of India and response from -9- Dental Council of India is still awaited. He contends that till then the executive instructions issued in exercise of powers under Article 162 are valid and have been used to regulate the admission of the petitioner. It is further stated that the case of victimization or the reduction of the role of subjective satisfaction or element in the process of evaluation of performance of students is not properly pleaded and is not made out at all. It is urged that there could not have been any challenge to said stipulations had said stipulation come from respondent no.3-Dental Council of India itself. Similarly, it is urged that the identity between students prosecuting MBBS and BDS Courses is pleaded only after taking into account the alleged goal of selecting best students for Post Graduate Courses. Learned Advocate General states that students prosecuting MBBS and BDS Courses represent two separate distinct classes by themselves and the Courses which they prosecute after their graduation, are also distinct. Thus, according to him, two distinct classes or students which are regulated by different standards, different enactments or different authorities cannot be clubbed together for such purpose. He has invited our attention to certain reported cases, to contend that the provisions in two enactments cannot be read together in an effort to work out the violation of Article 14 of the Constitution of India. He contends that Article 14 also stands violated when unequal are treated equally. It is therefore argued by learned Advocate General -10- that there is no merit in the Petition and the Petition filed therefore needs to be dismissed. 8. Learned Advocate General has also contended that in case this Court is inclined to interfere in the matter, the admission process which has already been completed cannot be disturbed and the Judgments/findings of this Court can be made effective only from next year. Our attention has also been invited to certain Judgments for this purpose. 9. Advocate Sonak in his brief reply has commented upon the Judgments cited by learned Advocate General to point out in what circumstances, the Hon'ble Apex Court has concluded that its Judgment would have prescriptive application. It is further contended by him that the petitioner has approached State Government well in time and he points out that the notice inviting applications for admission was published for the first time on Notice Board on 23.03.2009. He states that the representation made by petitioner was favourably considered by competent authority i.e. Minister on 17.02.2009 itself and, therefore, it was not necessary for the petitioner to knock doors of this Court. He contends that the petitioner can not be charged with fault of not approaching this Court earlier. He, therefore, contends that the -11- submission that the petitioner has approached this Court belatedly is without any merits. 10. The documents produced on record before us clearly show that on 17.02.2009, the Minister for Health has after taking note of the discrepancy in the matter, remarked that the requirements of scoring 60% marks in subject speciality should be scrapped immediately. The petitioner has pointed out that the notice on Notice Board of respondent no.2-College inviting applications for admission of Post Graduate Courses was published for the first time on 23.03.2009. During arguments, it was stated before us that paper publication in this respect was sometime in the month of April 2009. The Petition has been filed before this Court on 01.04.2009 and this Court has issued notice on next day i.e. 02.04.2009 itself. It is, therefore, obvious that in the wake of note dated 17.02.2009 mentioned above, petitioner had no cause to move this Court atleast till 23.03.2009. The Petition has been filed within eight days thereafter and hence the objections of learned Advocate General that Petition suffers from laches cannot be sustained in this background. The other contention that the petitioner was always aware of the norm prescribed by the State Government and he prosecuted his Courses accordingly is being considered at proper place in this Judgment. -12- 11. The contentions about introduction of subjective element in the process because of norm prescribed by respondent no.1-State Government now needs to be looked into. The Judgment of the Hon'ble Apex Court reported at (2007) 10 S.C.C. 201 (Maharashtra University of Health v. Paryani Mukesh Jawaharlal & Ors.), has been relied upon by the petitioner in support of this contention. Perusal of said Judgment reveals that in paragraph 9, the Hon'ble Apex Court has only reproduced the arguments of the University that as internal assessment is done by faculty of Medical College where the candidates are students, an element of subjectivity is likely to creep in and therefore the restriction on weightage for internal assessment to 20% of the total marks under MCI Regulations was valid. However, apart from mentioning this argument, there is no further discussion in this respect by Hon'ble Apex Court and perusal of Paragraph 21 of the Judgment shows that this aspect was not gone into in the matter. The Hon'ble Apex Court has concluded that the facts before it demonstrated that internal assessment marks were not intended to be clubbed with marks of University examination (externals) to ascertain whether a student has passed in theory including orals and practicals. The argument advanced is also hypothetical because it presumes that internal examiner may unnecessarily further the interest of another student or -13- then may cause prejudice to some other student to affect his future prospects. However, such possibility by itself cannot be a ground for challenging the criterion of fixing 60% marks in subject speciality. It is to be noted that there has been a debate about grant of marks itself while evaluating the performance of the students and some of the experts have also expressed that instead of marks, grades should be given. The marks, therefore, obtained by the petitioner also cannot be presumed to be free from the alleged subjectivity. Looking to the pleadings in the Petition, we find ourselves unable to probe into more details in this respect. 12. The other objection raised is in relation to violation of “Article 14”. The Judgment of Hon'ble Apex Court reported at (1989) 2 S.C.C. 249 (Municipal Corporation of Greater Bombay & Ors. v.Thukral Anjali Deokumar & Ors.), has been relied upon for this purpose. Perusal of paragraph 17, 18 and 19 on which the learned Counsel for the petitioner has placed strong reliance show that the question of granting preference to students for admission to Post Graduate course was under consideration and preference was being given to students of same institute on the ground that they had cleared the graduation examination from that institution only. In this background, Hon'ble Apex Court has stated that Article 14 permits -14- classifications when there is an intelligible differentia which distinguishes persons grouped together from those who are left out of that group and there is rational nexus to the object sought to be achieved by such classification. In paragraph 18, the Hon'ble Apex Court has given the illustrations of arbitrariness which crept into the process due to such preference and all this has been on the background of the fact that all students have taken a common university examination. Hon'ble Apex Court, therefore, in paragraph 18 observes that when the University is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post-graduate degree course of the same university, except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions. In paragraph 19, Hon'ble Apex Court, has found that preference to any student on any ground other than merit will not stand the test of Article 14 of the Constitution. 13. (1989) 2 S.C.C. 145 (Deepak Sibal v. Panjab University & anr.), is the other Judgment of Hon'ble Apex Court relied upon for the very same purpose. There, after mentioning the test for determining breach of Article 14 in Para 9, the Hon'ble Apex Court has considered the object of starting evening classes for grant of Law Degree. In paragraph 10 it was noticed that the said object was to provide -15- admission to bonafide employees who could not attend the morning classes on account of their employment. In view of this object, Hon'ble Apex Court found that restricting admission to evening classes only to regular employees of government/semi government institutions was not valid. In Paragraph 12, the reasons given by respondents for restricting such admission are also considered and in paragraph 13, it has been noticed that by prescribing such restriction, the respondents deviated from their object of starting evening classes. Hon'ble Apex Court found it difficult to hold that Government employees and private employees stood on a different footing in so far as question of admission to LLB Degree Course was concerned. Hon'ble Apex Court has stated that the test was whether employees of private establishment were equally in a disadvantageous position like the employees in government/semi government institutions and after holding in favour of private employees, Hon'ble Apex Court concluded that excluding employees of private establishment did not satisfy the test of intelligible differentia. 14. Thus, both the Judgments of Hon'ble Apex Court clearly show the availability of homogeneous class to which different standards were sought to be applied and thus the object to be achieved was getting defeated. The existence of such homogeneous class in the present case has not been demonstrated. The students prosecuting -16- MBBS Courses and BDS Courses cannot be equated together and have always been treated differently. The difference is right from the stage of admission to respective Courses and the syllabus as also examining bodies are different. We find that here an attempt is being made to club two inherently different classes together by pointing out the alleged common object. The object of MCI and DCI is to select best possible student for prosecuting Post Graduate Courses and they have done it by prescribing the norms which they found best to suit the purpose. Merely because object is common, the two heterogeneous classes cannot be clubbed together and arguments of violation of Article 14 cannot be advanced. 15. Learned Advocate General has invited our attention to Judgment of the Hon'ble Apex Court reported at (2002) 4 S.C.C. 34 (Ashutosh Gupta v. State of Rajasthan & Ors.), particularly Paragraphs 5 and 6 to point out that the basic requirement of having appropriate pleadings and averments which must be specific, clear and fully unambiguous in the substantive petition are not satisfied. We find that the petitioner has alleged violation of Article 14 only by pointing out what according to him is common object and then different treatment to students of MBBS and BDS for that purpose. The pleadings on record are, therefore, sufficient to support the case sought to be made out. The -17- question whether such case is viable or has been made out or not is a different issue and the sufficiency of pleadings for that purpose is not the relevant issue. In paragraph 6, the Hon'ble Apex Court has held that if a law has to be struck down as violative of Article 14 the inequality must arise under the same piece of legislation or under the same set of laws which have to be treated together as one enactment. Inequality resulting from two different enactments made by two different authorities in relation to the same subject will not be liable to attack of Article 14. Here it is not in dispute that respondent no.3-Dental Council of India is a distinct authority functioning under the provisions of Dentist Act 1948 while the Medical Council of India is a separate authority functioning under an all together different enactment under the name Medical Council of India Act 1956. The finding that students prosecuting these Courses do not form a class has already been given above. 16. In (2002) 4 S.C.C. 539 (Ombalika Das & anr. v. Hulisa Shaw), the Hon'ble Apex Court has stated that classification for the purpose of legislation cannot be done with mathematical precision and the legislature enjoys considerable latitude while exercising its wisdom taking into consideration myriad circumstances, for said purpose. However, we do not find any necessity to consider this Judgment relied upon by learned Advocate General, in view of our findings that the -18- students cannot not be treated as constituting one class and hence there is no question of holding that by prescribing the norm of possessing 60% marks in subject speciality only for Dental College graduate students for securing admission to Post Graduate Course, the respondent no.1-State Government has violated Article 14 of Constitution of India. 17. Before touching the issue on merits, as after hearing Advocate Sonak and learned Advocate General, we found that the only debate between the parties was whether the stipulation of obtaining 60% marks in subject speciality was an additional or higher standard prescribed in consonance with the norms of Dental Council of India or then it is repugnant to those norms, is the main issue. Both learned Counsel have cited various Judgments in support of their contentions. In view of this, we find it unnecessary to refer to all these Judgments, but for the purpose of record, we are mentioning the Judgments relied upon by them as under : Petitioner has relied upon : 1. (2004) 11 S.C.C. 755 (Bharati Vidyapeeth & Ors. v. State of Maharashtra and anr.) 2. AIR 1963 S.C. 703 (Gujarat University & anr. v. Shri Krishna Ranganath Mudhokar) 3. (1995) 4 S.C.C. 104 (State of Tamil Nadu & anr. v. Adhiyaman Educational & Research Institute & Ors.) -19- 4. AIR 1959 S.C. 648 (Deep Chand v. State of U.P.) 5. (1990) 2 S.C.C. 562 (Vijay Kumar Sharma v. State of Karnataka) 6. (1999) 7 S.C.C. 120 (Dr. Preeti Srivastava v. State of M.P.) 18. In addition to this, Advocate Sonak has also relied upon Judgment reported at (1975) 1 S.C.C. 559 (Ramchandra Keshav Adke & Ors. v. Govind Joti Chavare & Ors.), to urge that when power is to be exercised by any authority, it is to be exercised in the manner