IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FOURTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NOS.15260, 15988, 16017, 15989, 16084, 16324, 16024, 16144, 16148, 16149, 15764, 16222, 16209, 22739 OF 2008 (common order) WRIT PETITION NO : 15260 of 2008 Between: Dasari Pujitha, D/o. D. Srinivasa Rao, S/o. Dasari Panakala Rao, Aged about 49 Years, Occ: Business, R/o. 57-7-2/1, Beside Kakatiya Clinic, Kakatiya Road, Patamata, Vijayawada - 520 010. ..... PETITIONER AND 1 Government of Andhra Pradesh, Rep. by its Principal Secretary, Health, Medical and Family Welfare Department, Secretariat, Hyderabad. 2 Dr. NTR University of Health Sciences, Rep. byits Registrar, Vijaywada, Krishna District. 3 Medical Council of India, Rep. byits Secretary, Galib Marg, Kotla Raod, New Delhi. 4 The Convenor, EAMCET 2008, Jawaharlal Nehru Technological University, Kukatpally, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a Writ, Order or Directions(s) essentially in the nature of Writ of Mandamus directing the Respondents herien to admit the petitioner herein into I-Year M.B.B.S Course under the NCC quota on the bais of the priority prescribed under G.O.ms.No. 155, Higher Educatin (EC-2) Department, Dated 17-11-2000 without reference to the percentage of marks prescribed under the amended sub-rule (e) of Rule 3 of andhra Pradesh Un-aided Non-Minority Professional Institutions (Regulations of Admissions into Under Graduate Medical and Dental Professional Courses), Rules, 2007 as amended vide G.OMs.No. 181 Medical, Health and Family Welfare (E1) Department, Dated 21-05-2008 and pass Counsel for the Petitioner: MR.P.R.PRASAD Counsel for the Respondent No.: GP FOR MEDICAL HEALTH & FAMI.WELFARE The Court made the following : COMMON ORDER: 1. This batch of writ petitions are ﬁled questioning the application of the amended rule i.e. sub-rule (e) of Rule 3 of the Andhra Pradesh Un-aided Non-Minority Professional Institutions (Regulations of Admissions into Under Graduate Medical and Dental Professional Courses), Rules 2007 for admissions into 1st year MBBS course for the year 2008. 2. Facts of each case are not required to be detailed since the issue involved in these writ petitions is – whether the amended rule i.e. sub-rule (e) of Rule 3 of the Andhra Pradesh Un-aided Non-Minority Professional Institutions (Regulations of Admissions into Under Graduate Medical and Dental Professional Courses), Rules 2007 vide G.O.Ms.No.181 Medical, Health and Family Welfare (E1) Department, Dated 21.5.2008 can be given eﬀect for admissions into 1st year MBBS course for the year 2008-09. 3. The petitioners appeared for EAMCET 2008 and secured ranks. Dr.N.T.R. University of health Sciences, represented by its Registrar, Vijayawada, Krishna District-2nd respondent, issued admission notiﬁcation for MBBS/BDS for the academic year 2008- 09 into the colleges aﬃliated to Dr.NTR University of Health Sciences, Vijayawada from the eligible candidates. With regard to eligibility criteria, it is indicted that (1) the candidates should have qualiﬁed in EAMCET, 2008 and should secure not less than 50 % of marks in EAMCET and in case of BC/SC/ST it is not less than 40%; (2) the candidates should have passed two years Intermediate (10 + 2 pattern) or equivalent examination with Physics, Chemistry, Botany, Zoology and English individually and must have obtained not less than 50% marks taken together in Physics, Chemistry, Botany and Zoology. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes, and Backward Classes the marks obtained shall be not less than 40% marks taken together in Physics, Chemistry, Botany and Zoology. For better understanding of the grievance of the petitioners it would suﬃce to refer paras 14 to 17 of the writ aﬃdavit ﬁled in support of W.P.No.15260 of 2008, which read as under: “ 14. It is submitted that it may be noticed that no minimum percentage of marks prescribed under management quota, irrespective of securing minimum prescribed marks the managements are at liberty to give admissions to the candidates who have secured far less than the minimum marks which is clear from amended Clause 6(b) of the under G.O. The amended rule incorporated for the ﬁrst time on the basis of the stipulation made by the Medical Council of India. The rules made by the Medical Council of India do not prescribe any distinction for the admissions made as per the merit list under the competitive examination and admission permitted to be made by the management. Therefore, increasing the minimum percentage of marks to obtain for the purpose of eligibility for securing admission into MBBS course is wholly arbitrary and illegal. 15. It is submitted that under the earlier Rules, 2007 issued G.O.Ms.No.136, HM & FW (E1) Department, dated 30.4.2007 it has prescribed the 50% of marks put together in the qualifying examination as well as competitive examination and not 50% separately for qualifying and competitive examination which is as follows: “For admission of MBBS course on the basis of competitive entrance examination, a candidate for admission to medical course must have obtained not less than 50% marks in Physics, Chemistry and Biology taken together both at qualifying and competitive examination.” The petitioner has secured more than 50% of marks put together both in qualifying and competitive examination. The new condition imposed under the amended rule cannot be made applicable to the candidates who have appeared for the EAMCET 2008. Thus, in any event, the petitioner’s case has to be considered as per the condition prescribed in the EAMCET notification. 16. It is submitted that right from the inception the Government has not prescribed minimum qualifying marks as 50% in Physics, Chemistry and Biology for the purpose of securing admission. That means, the Government had no intention to follow the regulation prescribed by the Medical Council of India in 1997. This clearly indicates that the Medical Council of India regulation has no binding force. 17. It is submitted that it may be noticed that regulation of the Medical Council of India compels obtaining of 50% of marks in English also. In several institutions and Universities of several States English is not a compulsory subject. If the regulation is taken mandatory the candidates who have not studied English are ineligible for admission into medical courses. Therefore, it is ridiculous to say that the regulations made by Medical Council of India are mandatory. In any event, the case of the petitioner has to be considered under the old rules and not as per the conditions contained in G.O.Ms.No.181. In the circumstances, the insistence of the Medical Council of India to have 50% of marks in the competitive examination to be eligible for admission is illegal and without jurisdiction.” 4. The petitioners moved interlocutory applications in the writ petitions. A common interim order came to be passed on 29th July, 2008 dismissing the interlocutory petitions. The writ petitioners carried the matter in an appeal. A Division Bench of this Court disposed of the Writ Appeals with a direction to 2nd and 3rd respondents to ﬁle their counter aﬃdavits and thereupon proceed with the ﬁnal hearing of these writ petitions. Hence, these writ petitions are taken up for disposal at the admission hearing. 5. 2nd respondent ﬁled counter aﬃdavit in W.P.NO.15260 of 2008 on 20.10.2008. Dr.T.Venugopala Rao has sworn to the counter aﬃdavit. It is stated in the counter aﬃdavit that admissions to MBBS course in the country are bound by regulations made by Medical Council of India. The Medical Council of India got published the regulations in the gazettee of India dated 17.5.1997. From that date onwards the admissions in MBBS course shall be as per the regulations framed by Medical Council of India. As per regulation No.5 of Medical Council of India Regulations, in case of admission on the basis of qualifying examination, a candidate for admission to medical course must have obtained not less than 50% marks in English and 50% marks in Physics, Chemistry and Biology taken together at the qualifying examination; and in case of admission on the basis of a competitive entrance examination, a candidate for admission to medical course must have obtained not less than 50% marks in English and 50% marks in physics, Chemistry and Biology taken together both at qualifying and competitive examinations; provided further that in respect of candidates belonging to SC/ST and other OBCs, the marks obtained be read as 40% instead of 50%. The Government of Andhra Pradesh issued G.O.Ms.No.184, Health, Medical and Family Welfare (E1) Department, dated 20.8.1999 and G.O.Ms.No.136, Health, Medical and Family Welfare (E1) Department, dated 30.4.2007 notifying the rule relating to admission of candidates into MBBS course in Government and unaided Non-minority colleges in Andhra Pradesh. As per the above government order, the candidates should secure not less than 50% of mark sin Physics, Chemistry, Botany and Zoology taken together in the qualifying examination and in case of BCs/SCs/STs, it is not less than 40%. The University followed the above government orders with regard to admissions into MBBS course upto the academic year 2007-08. While so, the Medical Council of India addressed letters to the Principals of various colleges in the State, directing them to discharge the OC candidates who secured less than 50% marks in the common entrance test and BC/Sc/ST candidates who secured less than 50% of marks in the Common Entrance Test (EAMCET). The same was brought to the notice of Government of Andhra Pradesh and Government of Andhra Pradesh after careful examination of the matter issued G.O.Ms.No.181, Health, Medical and Family Welfare (E1) Department, Dated 21.5.2008 amending the eligibility criteria for admission into MBBS course as per Medical Council of India Regulations. There are number of eligible candidates under NCC category as per the MCI Regulations and as per the revised Rules framed by the Government of Andhra Pradesh. The Government of Andhra Pradesh amended the existing rules as notiﬁed in G.O.Ms.No.181, Health, Medical & Family Welfare (E1) Department, dated 21.5.2008. Thus the amended is only applicable for admission into MBBS course from the academic year 2008-09 onwards as the University issued notiﬁcation calling for application vide its notiﬁcation dated 11.7.2008. The regulations framed by Medical Council of India are binding and these regulations shall be applied to the candidates who are selected basing upon the merit in the competitive Common Entrance Examination (EAMCET). 6. 3rd respondent ﬁled counter aﬃdavit on 6.9.2008. The Assistant Secretary, Medical Council of India aﬃrmed the aﬃdavit ﬁled on behalf of 3 rd respondent. The judgments of Supreme Court in various cases commencing from STATE OF KERALA v. T.P.ROSHNA [1] and relevant provisions in the MCI Act and MCI’s Graduate Medical Education Regulations, 1997 (for short Regulations, 1997) are copiously referred therein. The counter affidavit affidavit, in brief, is : By virtue of Section 33 of the Indian Medical Council Act, 1956 (for short Act) the MCI has been empowered with prior approval of the Central Government to frame regulations for laying down minimum standards of infrastructure, teaching and other requirements for conduct of medicine courses. The Supreme Court in PROFESSIONAL EXAMINATION BOARD, M.P. & Anr. V. PRASHANT AGRAWAL & ANR [2] has held that for any legal admission in the MBBS course, the candidate concerned should qualify both the norms, i.e. 50 % marks in 10 + 2 and thereafter 50% marks in the common entrance test, as per clause 5 of the Graduate Medical education Regulations of MCI and no authority has the power to give relaxation in favour of any person/authority in applying the eligibility norms provided in MCI regulations. In terms of Regulations, 1997 for becoming eligible for being admitted to a medicine course, a candidate is obliged to secure a minimum 50% marks for general category and 40% in case of SC/ST/OBC category candidates in the combined entrance test conducted by any designated admitting authority for being eligible to be considered to be admitted in a medicine course. All the admissions in any medical college, in MBBS course in the present case, is to be made in terms of MCI regulations and the law laid down by the Hon’ble Supreme Court. No admission in any medicine course can be made without fulﬁlling the minimum eligibility criteria – in terms of regulations, 1997 – of obtaining a minimum of 50% marks for general category candidates and 40% marks in case of SC/St/OBC category candidates in the common entrance test conducted by the concerned competent admitting authority. For better appreciation I may refer para 34 and 35 of the counter, which read as under: “ 34. It is respectfully submitted that it should be the endeavour of all the concerned admitting authorities to ensure that the meritorious students should not face any diﬃculty either with regard to the admission process or in relation to the payment of fee, while making admission in the medical courses. It is further respectfully submitted that the aﬃdavits on behalf of the concerned competent admitting authorities. I.e. respondent Nos.1,2 and 4 herein, would deserve to be examined by this Honourable Court for conﬁrming the veracity of the contentions raised on behalf of the petitioner. 35. It is further respectfully submitted admissions in certain private medical colleges of the State of M.P. who had, for academic year 2006- 07, granted admission in MBBS course to less meritorious and ineligible candidate, by charging capitation fee, contrary to the regulations of MCI and the law laid down by the Hon’ble Apex Court, those admissions were challenged before the Hon’ble M.P. High Court through a PIL being W.P.No.16146 of 2006 – AKHIL BHARATIYA VIDHYARTHI PARISHAD V. STATE OF M.P. & ORS. The Hon’ble M.P. High Court by its judgment and ﬁnal order dated 23.7.2007, copy whereof is annexed as Annexure R- 3/3, directed MCI/DCI to take prompt action against the private medical/dental colleges of M.P. in accordance with law in respect of admissions in MBBS/BDS courses.” 7. It is the contention of the petitioners that with regard to admissions under sports quota there cannot be a stipulation that candidates shall secure minimum marks in the entrance examination. For better understanding of the grievance of the petitioners aspiring under sports quota I deem it appropriate to refer the prayer sought for in W.P.No.22739 of 2008, which reads as under: “ For the reasons stated in the accompanying affidavit, it is hereby prayed that this Honourable Court may be pleased to issue a Writ or Order or direction, more particularly in the nature of Writ of Mandamus: a) declaring that the respondents have no power to prescribe the minimum marks which a candidate should obtain for attending the counseling diﬀerent from the minimum qualifying marks already prescribed by Rule X of the annexure for attending the Medical Counseling for Special Category of SC/ST/BC under the sports quota in EAMCET-2008 ad consequently declare the action of the respondents in prescribing minimum 40% marks for the candidates belonging to SC, ST & BC candidates and also for candidates claiming the admission under sports quota in its notiﬁcation dated 14.10.2008 issued by R1 as illegal, arbitrary, unconstitutional and violative of principles of natural justice and further direct R1 to R4 to consider and allow the petitioner for counseling scheduled to be held on 18.10.2008 and issue priority certiﬁcates basing on her certiﬁcate in her respective games as per the procedure notiﬁed as on the date of ﬁrst notiﬁcation for admission into MBBS course for the academic year 2008-09 and pass such other order or orders as this Honourable Court deem ﬁt and proper in the circumstances of the case.” 8. Heard Sri.P.R.Prasad, learned counsel appearing for the petitioners, learned Government Pleader for Medical, Health and Family Welfare, appearing for 1st respondent, Sri.S.Niranjan Reddy, learned Standing Counsel for Medical Council of India appearing for 3rd respondent and Sri.D.V.Nagarjuna Babu, learned Standing Counsel for Dr.N.T.R. University of Health Sciences appearing for 2nd and 4th respondents. Sri.A.Narasimha Rao and Sri Kowturi Vinay Kumar, learned counsel appearing for the petitioners in W.P.No16209 and 16222 of 2008 respectively adopted the arguments of Sri.P.R.Prasad. Sri.Hemendranath Reddy, learned counsel appearing for the petitioner in W.P.No.22739 of 2008 while adopting the arguments of Sri.P.R.Prasad submitted that no minimum marks in the entrance examination can be stipulated with regard to the candidates who are seeking admission under special categories. 9. Learned counsel appearing for the petitioners submits that the process of admission into 1st year MBBS course commenced with the EAMCET notiﬁcation on 14.3.2008 and therefore, any change of rules with regard to admission into 1st year MBBS course after issuance of EAMCET notiﬁcation amounts to changing the rules after the game is over. A further submission has been made that changing the rules after the EAMCET notiﬁcation will badly aﬀect the eligibility criteria of the candidates and that by way of principle of promissory estoppel, the 2nd respondent- university cannot be permitted to amend the eligibility criteria. A further submission has been made that certain rights have been accrued to the candidates after issuance of EAMCET notiﬁcation and therefore, rules cannot be changed to take away the rights accrued to them. He would also contend that in case the Government intends to change the rules with regard to eligibility criteria to the admission into 1st year MBBS course, the same are required to be put on notice to the candidates well in advance. He strenuously contended that admission process commenced with submitting an application for appearance in entrance examination and any change with regard to admission procedure after ﬁling the application for appearance in entrance examination shall not be given eﬀect for the academic year 2008-09. In support of his submissions, he placed reliance on the following decisions: 1) M/s.Motilal Padampat Sugar Mills Co. Ltd. v. The State of U.P. & Ors.[3] 2) A.A.Calton v. The Director of Education & Anr.[4] 3) P.Mahendran & Ors. V. State of Karnataka & Ors.[5] 4) Dr.Preeti Srivastava & Anr. V. State of M.P. & ors.[6] 5) Dolly Chhanda v. Chairman, JEE & Ors.[7] 6) Nimesh Mehta v. State of Maharashtra & Ors.[8] 7) Mahabir Vegetable Oils (P) Ltd. & Anr. V. State of Haryana & Ors.[9] 8) S.L.Srinivasa Jute Twine Mills (P) Ltd. v. Union of India & Anr.[10] 9) MRF Ltd., Kottayam v. Asst.commissioner (Assessment) Sales Tax & Ors.[11] 10) K.Manjusree v. State of A.P. & Anr.[12] 11) A.Manoharan & Ors. V. Union of India & Ors.[13] 12) Abhishek Srivastava v. State of U.P.[14] 13) Manoj Kumar v. Co-ordinator, ACMNR Engg. College.[15] 14) Dr. Ajay Srivastava v. State of Rajasthan & Ors.[16] 15) Durga Charan Mohanty v. The Utkal University & Ors.[17] 16) Bannari Amman Sugars Ltd. V. CTO[18], 17) MAHARASHTRA SRTC v. RAJENDRA BHIMRAO MANDVE[19] 18) CONFEDERATION OF EX-SERVICEMEN ASSNS V. UNION OF INDIA[20] 10. I n M/s.Motilal Padampat Sugar Mills Co. Ltd.’s case (1 supra) the Supreme Court held that the true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or eﬀect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the courts for doing justice and there is no reason why it should be given only a limited application by way of defence. 11. In A.A.Calton’s case (2 supra), the Supreme Court held that the process of selection under Section 16-F of the U.P. Intermediate Education Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection is an integrated one. 12. In Dolly Chhanda’s case (5 supra), the Supreme Court held that the general rule is that while applying for any course of study or a post, a person must possess the eligibility qualiﬁcation on the last date ﬁxed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. 13. In Nimesh Mehta’s case (6 supra), the Supreme Court held that before any amendment to the existing norms is introduced, a prior notice shall be given to the students at the time when they have t opt for the subjects, particularly, optional subjects. 14. I n Mahabir Vegetable Oils (P) Ltd.’ case (7 supra), the Supreme Court held that delegated legislation cannot take away, be it accrued or vested. Much emphasis has been laid by the learned counsel appearing for the petitioners on para.37 of the judgment cited and it is thus: “37. It is true that the State issued a notiﬁcation on or about 3.1.1996 expressing its intention to amend the Rules. By reason thereof, however, the State neither stated nor could it expressly state, that the Rules shall stand amended. It is now well-settled principle of law that the draft rules can be invoked only when no rule is operative in the field. Recourse to the draft rules for the purpose of taking a decision in certain matters can also be taken subject to certain conditions. (See Union of India v. V.Ramakrishnan ((2005) 8 SCC 394 = 2005 SCC (L&S) 1150), SCC paras.23 and 24.) 15. In S.L.Srinivasa Jute Twine Mills (P) Ltd.’s case (8 supra), the Supreme Court held that it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. 16. In MRF Ltd. Kottayam’s case (9 supra), the Supreme Court referred its earlier judgment in Mahabir Vegetable Oils (P) Ltd.’s case (7 supra) and S.L.Srinivasa Jute Twine Mills (P) Ltd’s case (8 supra) with approval and held that the provisions of the Act or notiﬁcation are always prospective in operation unless the express language renders it otherwise making it eﬀective with retrospective effect. 17. I n K.Manjusree’s case (10 supra), the Supreme Court held that the rules of the game cannot be changed afterwards. Much emphasis has been laid by the learned counsel on para.33 of the judgment cited, which reads as hereunder: “33. The Resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribed by rules, the minimum marks both for written examination and interviews, or prescribed minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribed any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But, if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for