IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29/09/2003 CORAM THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN W.P.No.15830 of 2003 and W.P.Nos. 16113, 16575, 16327, 13304, 15343, 14994, 14995, 15553, 15274, 15275, 15068, 15255, 15325, 15349, 15412, 15424, 15425, 15453, 15431, 15432, 15441, 15503, 15522, 15524, 15599, 15691, 15796, 16469, 16470 and 19112 of 2003 and W.P.M.P.Nos.19893, 19894, 20180, 20181, 20755, 20756, 20427, 16715, 19255, 22764, 22765, 18776, 18778, 23428, 21915, 22556, 19541, 19542, 19159 to 19162, 18870, 18871, 19151, 19230, 19259, 19260, 19341, 19357 to 19360, 19398, 19367, 19369, 19382, 19472, 19494, 19495, 19497, 19498, 19604, 19605, 19714, 19848, 19849, 20576 and 20577 of 2003 and W.V.M.P.Nos.1206, 1207 and 1254 of 2003 W.P.No.15830 of 2003: 1. Dr.R.Ilayaraja 2. N.S.Karthikeyan 3. Dr.S.Mohaideen Noushadh Gani 4. Dr.R.Aruna Priyadarshini 5. Dr.S.Bhama ... Petitioners. -Vs- 1. State of Tamil Nadu, rep. by its Secretary to Govt., Health and Family Welfare Department, Fort St.George, Chennai-9. 2. The Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai-10. 3. The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai-10. ... Respondents. Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of declaration as stated therein. For Petitioners :: Mr.K.M.Vijayan, Sr.counsel for M/s.La Law in W.P.Nos.15830, 16113, 16575,15343, 14994 and 14995 of 2003 Mr.R.Shivakumar, for petr. in W.P.No.16327 of 2003 Mr.M.Ravi, for petr. in W.P.13304 of 2003 Mr.G.Thangavel, for petr. in W.P.15553 of 2003 Mr.J.James, for petr. in W.P.Nos.15274 & 15275 of 2003 Mr.S.R.Sundar, for petr. in W.P.No.15068 of 2003 Mr.R.Subramanian, for petr. in W.P.No.15072 of 2003 Mr.C.Prakasam, for petr. in W.P.No.15255 of 2003 Mr.N.Damodaran, for petr. in W.P.No.15325 of 2003 Mr.D.Prasanna, for petr. in W.P.No.15349 of 2003 Mr.V.Chandrasekaran, for petr. in W.P.No.15412 of 2003 Mr.Srinath Sridevan for petr. in W.P.Nos.15424 & 15425/2003 Mr.S.Thiruvenkadam, for petr. in W.P.No.15453 of 2003 Mr.P.Raja, for petr. in W.P.Nos.15431,15432 & 15691/2003 Mr.V.Dhanapalan, for petr. in W.P.nos.15441 & 15503/2003 Mr.R.Singaravelan, for petr. in W.P.No.15522 of 2003 Mr.A.K.Kumaraswamy for petr. in W.P.No.15524 of 2003 Mr.S.Doraisamy, for petr. in W.P.No.15599 of 2003 Mr.S.Sashikumar, for petr. in W.P.No.15796 of 2003 Mr.R.Balasubramaniam,for petr.in W.P.Nos.16469 & 16470/2003 Mrs.Hema Sampath, for petr. in W.P.No.19112 of 2003 For Respondents in all petns. : Mr.N.R.Chandran, Advocate-General assisted by Mr.V.R.Rajasekaran,Spl.G.P.(Edn.) Mr.V.Ayyadurai, for petr. in W.V.M.P.Nos.1206 & 1207 of 2003 and in W.P.M.P.Nos.22764 & 22765 of 2003 Mr.K.Doraisamy, Sr.counsel for M/s.Muthumani Doraisamy for for petr. in W.P.M.P.No.23428 of 2003 Mr.L.S.M.Hasan Fizal, for petr. in W.P.M.P.No.22556 of 2003 :ORDER The petitioners in the various writ petitions have challenged some of the clauses in the prospectus issued by the Selection Committee, Directorate of Medical Education, Chennai for the admission to Post Graduate Diploma/Degree/ M.D.S./ Five Year M.Ch.(Neuro-Surgery) Courses in Tamil Nadu Government Medical/Dental and Self-Financing Dental Colleges. 2. The petitioners have challenged clause-28 of the said prospectus in so far as it empowers the Government to reduce the minimum eligibility marks for service candidates to fill up unfilled service vacancies in the general interest of the public. The petitioners have also challenged the clauses-32 and 33 which provide that there will be no rechecking/revaluation/retotalling of answer sheets and no candidate will be allowed to take back the booklets and request for provision of Xerox copies of the question booklet and answer sheets will not be entertained. Some of them have challenged the clause-48 and some others have challenged the clause 61(c) of the prospectus. For the sake of convenience, I consider clause by clause challenged in the writ petitions. Preliminary objections:- 3. Learned Advocate General submitted that the writ petitions are not maintainable, and according to him, the prospectus is binding and the petitioner who have taken up the examinations on the basis of the prospectus are not entitled to question the same after they found themselves not eligible for admission. Learned Advocate General referred to the decision of a Bench of this Court in RATHNASWAMY,Dr.A., v. DIRECTOR OF MEDICAL EDUCATION (1986 WRIT L.R. 207) and the decision of a Full Bench of this Court in MURALI,R. Dr. v. Dr.R.KAMALAKKANNAN (1999(III) CTC 675) and also the decision of the Supreme Court in K. DURAISAMY v. STATE OF T.N. (2001) 2 SCC 538) and submitted that the Supreme Court has not gone into the question of estoppel since the Supreme Court decided the case on merits of the matter. Learned Advocate General also submitted that some of the petitioners have filed the writ petitions after taking up the counselling and since they took up the chance in the counselling and after having failed in the process of selection, it is not open to them to challenge the prospectus in the writ petitions. In so far as service candidates are concerned his next submission is that the service candidates form a separate category from the open category candidates and there are two groups and it is not open to the petitioners who are in open category to question 50% of the seats made available to inservice candidates and therefore it is not open to them to challenge some of the clauses in the prospectus relating to the inservice candidates. I propose to deal with the preliminary objections raised by the learned Advocate General when I consider the validity of the clauses of the prospectus. Clause-28:- 4. The first clause that is under challenge is the clause-28 and the relevant portion of clause-28 of the prospectus which is challenged in the writ petitions reads as under:- " Government has the right to reduce the minimum eligibility marks for service candidates to fill up unfilled service vacancies in the general interest of the public." 5. I heard Mr.K.M.Vijayan, learned senior counsel appearing for the petitioners. The submission of Mr.K.M.Vijayan, learned senior counsel is that the portion of clause-28 which is under challenge in the writ petitions was not found in the prospectus issued for the earlier years and in the previous years, in some cases, the minimum 40% marks prescribed in the prospectus were reduced in favour of inservice candidates and inservice candidates were allotted seats and the selection was challenged before this Court and this Court held that it is impermissible for the State to reduce the minimum marks for admission to P.G. courses. He also submitted that the present clause which is under challenge has been introduced only to get over the decision of this Court. He submitted that under the Postgraduate Medical Education Regulations,2000 framed by the Medical Council of India ( hereinafter referred to as 'the Medical Council of India Regulations') under Section 33 of the Indian Medical Council Act, 1956, the Medical Council has prescribed 40% as minimum marks for eligibility for admission to postgraduate medical courses and therefore, the State Government has no power to reduce the minimum percentage of marks for eligibility for admission to postgraduate medical courses. 6. I am of the view, Mr.K.M.Vijayan, learned senior counsel is well-founded in his submission that the State Government has no power to reduce the minimum percentage of marks for eligibility for admission to postgraduate medical courses prescribed by the Medical Council of India. The Medical Council of India has fr amed the Regulations in exercise of the powers conferred on it under clause(l) of section 33 of the Indian Medical Council Act and I hold that once the minimum percentage of marks for eligibility for admission to postgraduate medical courses is prescribed by the Medical Council of India, it is impermissible for the State Government to reduce the said minimum percentage of marks. The Supreme Court in DR.PREETI SRIVASTAVA V. STATE OF M.P. (1999) 7 SCC 120) held that in every case the minimum standards as laid down by the Central statute or under Medical Council Regulations have to be complied with by the State while making admissions and the State Government may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry-25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down. 7. The Supreme Court in DR.SADHNA DEVI v. STATE OF U.P. (1997) 3 SCC 9) has also held that the minimum marks prescribed cannot be done away with. The Supreme Court in STATE OF PUNJAB v. DAYANAND MEDICAL COLLEGE & HOSPITAL (2001) 8 SCC 664) has held that it is not open to the University or the Government to dilute th e standard by fixing marks lower than what is set out by the Medical Council of India. The Supreme Court has also held that if the University or the Government felt any difficulty they ought to have approached the Medical Council of India for fixing of appropriate standards in that regard and the State Government could not unilaterally frame a scheme reducing the standard in violation of the terms of the Medical Council of India Regulations which is repeatedly stated to be the repository of the power to prescribe standards in postgraduate studies subject, of course, to the control of the Central Government as envisaged in the Act constituting the Council. The same view has also been reiterated by the Supreme Court in STATE OF M.P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13( SC) wherein it was held that the requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the Medical Council of India Regulations framed in this behalf. 8. Learned Advocate General appearing for the respondents submitted that it is not open to the petitioners to challenge the clause enabling the State Government to reduce the minimum percentage of marks as the petitioners would not be eligible to compete with inservice candidates as the quota has already been fixed for them. Though the petitioners may not be eligible to apply and compete with inservice candidates, once it is brought to the attention of this Court that the condition in clause-28 of the prospectus is inconsistent with the Medical Council of India Regulations and it will have a bearing on the standards of medical education in the State, I am of the view, the Court cannot remain as a passive spectator and allow the State to reduce the minimum percentage of marks than that is prescribed by the Medical Council of India for eligibility for admission to postgraduate medical courses and dilute the standards of medical education in the State. 9. I therefore hold that the State Government has no power to reduce the minimum percentage of marks prescribed by the Medical Council of India for eligibility for admission to postgraduate medical courses, but it is needless to state that the Government, if so advised, is entitled to approach the Medical Council of India for relaxation of Regulation-9 of the Medical Council of India Regulations and unless the Medical Council of India or the Government of India relaxes the minimum percentage of marks specified in Regulation-9, the State Government has no power to reduce the minimum percentage of marks for inservice candidates. It is also relevant to notice the direction given by the Supreme Court in STATE OF M.P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC) which reads as under:- " The Medical Council of India, for the present, insists, through its Regulations, on a common entrance test being conducted whereat the minimum qualifying marks would be 50%. The State of Madhya Pradesh must comply with the requirements of the Regulations framed by the Medical Council of India and hold a common entrance test even if there are two separate channels of entry and allow clearance only to such candidates who secure the minimum qualifying marks as prescribed by the MCI Regulations. If the State has a case for making a departure from such rule or for carving out an exception in favour of any classification then it is for the State to represent to the Central Government and/or Medical Council of India and make out a case of justification consistently with the fore-quoted observation of this Court in Dayanand Medical College & Hospital's case (supra)." 10. It is also made clear that if the Medical Council of India or the Central Government does not reduce the minimum qualifying marks for admission of inservice candidates, the seats should not remain vacant and the vacant seats should be diverted so as to make them available to open category candidates. Clause-48: 11. The next clause that is under challenge is clause-48 and the clause reads as under:- "One mark for each completed year after the completion of CRRI shall be awarded as service mark for both service/non service candidates to maximum of Ten as on 01.02.2003. (Eg. If a candidate scores 50 Marks in Entrance Examination and completed Two Years after CRRI his total Aggregate Marks will be 50+2=52)." The clause provides for allotment of one mark for each completed year after the completion of CRRI for both service and non-service candidates with the maximum of 10 marks. The submission of Mr.K.M. Vijayan, learned senior counsel is that the above clause is violative of clause-9 of the Medical Council of India Regulations. According to him, the Medical Council of India has framed the Regulations to determine the academic merit and also prescribed the procedure to be adopted for both degree and diploma courses and the allotment of marks for experience for both service and non-service candidates is in violation of Regulation-9 of the medical Council of India Regulations. 12. The submission of the learned Advocate General is that clause-4 8 is applicable to all the candidates and it is not open to the petitioners to challenge the same after having received the advantage. His submission is that the petitioners should have challenged the same before they took up the examinations. He further submitted that the Regulation-9 is regulatory in character and it does not prohibit the awarding of one mark for experience. He submitted that the academic merit as found in Regulation-9 does not exclude the practical experience and experience is a relevant factor which cannot be ignored to determine the academic merit. He also submitted that the clause has been introduced on the basis of the directions of this Court given in an unreported judgment in W.P.No.10755 of 1992, etc. batch, (T. Dhilipkumar v. State of Tamil Nadu rep. by Secretary to Government, Education Department, Fort St. George, Madras-9 and others) dated 16.12.1992, and the maximum marks prescribed for experience is 10 and experience can also be included to determine the academic merit. He submitted that academic excellence is not sufficient for the pursuit of postgraduate course and experience is also relevant and if relevant consideration is taken into account, clause-48 is not invalid. 13. I find force in the submission of the learned Advocate General that the petitioners, having secured the advantage of addition of one mark for experience for each completed year of service, are not entitled to question the same after taking up the examinations. This Court in RATHNASWAMY,Dr. A. v. DIRECTOR OF MEDICAL EDUCATION (1986 WRIT LR. 207) has construed the expression, 'prospectus' issued with regard to admission to educational courses and held that the prospectus is a declaration to the candidates that a field for development of educational potentialities is available for exploration and that there could be a chance of success and it is a piece of information and it contains guidelines for admission. The clause that was construed by the Division Bench of this Court in Rathnaswamy's case was regarding allotment of one mark for each completed year of service/practice subject to a maximum of 20. This Court held that there was no infirmity in the selection and the petitioner could not plead total ignorance of the implication of the clause. 14. In SURYANARAYANA RAJU,G. Dr. v. THE GOVERNMENT OF TAMIL NADU, ETC. & OTHERS (1992 WRIT LR. 581) a Division Bench of this Court again considered the question of awarding of marks for number of years of service or practice after M.B.B.S. Qualification and held that the petitioner having acquiesced in the prescriptions in the prospectus by applying for the course, could not on his non-selection turn round and impeach the very prescriptions. The Division Bench has also referred to the pronouncements of the highest court of the land and held that it is not open to the petitioner to challenge the prospectus after having acquiesced in the prescriptions in the prospectus. 15. In Dr.R.MURALI v. Dr.R.KAMALAKKANNAN (2000) 1 SLR 600) a Full Bench of this Court has held that the petitioner having participated in the examinations after fully knowing the terms and conditions of prospectus is estopped from questioning the selection process. The Full Bench of this Court after referring to the decision of the Supreme Court in Om Prakash Shukla v. Akhilesh Kumar Shukla (1986 SCC ( Supp) 285), Union of India v. Chandrasekaran (1998 (3) SCC 694), S. Muthumanickam v. State of Tamil Nadu rep. By Commissioner and Secretary, Education, Science and Technology Department (1985 WLR 357) and Dr. Suryanarayan Raju v. The Government of Tamil Nadu (1992 WLR 579), held that the petitioners having acquiesced in the prescriptions in the prospectus are not entitled to question the same. I hold that the above decisions would squarely apply to the facts of the case and it is not open to the petitioners herein to challenge clause-48 of the prospectus. 16. Further, only one mark is awarded for each year experience subject to a maximum of 10 marks on the basis of the directions of this Court in the unreported decision in in W.P.No.10755 of 1992, etc. batch, (T.Dhilipkumar v. State of Tamil Nadu rep. by Secretary to Government, Education Department, Fort St. George, Madras-9 and others) dated 16.12.1992 wherein it was held that one mark for each year of service irrespective of the place of institution of service should be awarded. Since the relevant clause in the prospectus has been issued on the basis of the directions of this Court, there is justification on the part of the respondents to act in accordance with the directions of this Court. It is, no doubt, true that the directions were issued by this Court in Dhilipkumar's case prior to the framing of the Medical Council of India Regulations. However, the action of the respondents in following the directions of this Court cannot be faulted with. In this view of the matter, it is not necessary to consider the larger question posed by the learned Advocate General that the expression, 'academic merit' in Regulation-9 of the Medical Council of India Regulations would encompass practical experience also. The expression, 'academic merit' has not been defined in the Medical Council of India Regulations and in a wider sense, as contended by the learned Advocate General, it may include practical experience also and the decisions of the Supreme Court in Dr.PREETI SRIVASTAVA v. STATE OF M.P. (1999) 7 SCC 120) and PRE-P.G. MEDICAL SANGHARSH COMMITTEE v. DR.BAJRANG SONI (2001) 8 SCC 694) do support the case of learned Advocate General. However, in a strict sense, the expression, 'academic merit', as contended by Mr.K.M.Vijayan, learned senior counsel, may not include the practical experience as well and the marks secured in the common entrance test alone should be the criteria for admission. In my view, it is not necessary to go into the larger question. Though I uphold the clause-48 of the prospectus for the current year, as I have held that marks were awarded on the basis of directions of this Court and to maintain judicial discipline as I am bound by the decisions of Division Bench of this Court, yet, I have certain reservations regarding the validity of the stand taken by the respondents in awarding one mark for each year's experience as marks are awarded automatically on the basis of practical experience. Though experience may be a relevant factor, yet, awarding marks automatically depending upon the experience would spoil the chance of a real meritorious candidate who may have lesser number of years of experience making a deep inroad to the merit based selection. It is true that the marks are awarded uniformly to all according to the parameter of experience, but a person with larger number of years of experience would gain advantage because of the experience and he may overtake the meritorious candidate with lesser number of years of experience, not on account of any merit, but by the criteria of experience alone. In other words, a person with merit, but with no experience will start the race with a disability but a person with experience begins with all the advantages of assured marks for the years of experience. Moreover, the assigning of weightage for experience would affect the chance of a candidate in the open category and alter the order of merit. However, it is not necessary for me to dilate the matter further as I have upheld the clause-48 of the prospectus for the current year on the ground that the petitioners have approached the Court after taking up the examinations and also on the basis of the directions of this Court in Dhilipkumar's case (W.P.No.10755 of 1992, etc. batch dated 16.12.19 92). Accordingly, I uphold clause-48 of the prospectus for the academic year 2003-2004. Clause-61(a): 17. The next clause that is the subject matter of challenge is clause-61(a) of the prospectus which reads as under:- " The selection will be made by Counselling on Merit and applying Rule of Reservation wherever applicable. 50% of the seats will be made available as Open Competition for selection among both Service/Nonservice Candidates. 50% of the seats will be made available for Service Candidates." The clause provides that selection shall be made on merit and 50% of the seats are made available as open competition for selection among both service and non-service candidates and the remaining 50% of the seats are made available for service candidates. The submission of Mr.K.M.Vijayan, learned senior counsel for the petitioners is that clause-61(a) is violative of Medical Council of India Regulations. He referred to Regulation-9 of the said Regulations and submitted that students for postgraduate medical courses shall be selected strictly on the basis of their academic merit which should be determined by the competitive test conducted by the State Government or by the competent authority or on the basis of merit as determined by a centralised competitive test held at the national level or as provided in that Regulation. He therefore submitted that while reservation under the Constitutional provisions is permissible, the clause providing 50% of seats made available for service candidates is inconsistent with the Medical Council of India Regulations. Learned senior counsel, in his fairness, has brought to the attention of this Court the decision of the Supreme Court in K.DURAISAMY v. STATE OF T.N. (2001) 2 SCC 538) and submitted that the decision is distinguishable as in that case the Court was dealing with the situation prior to the enactment of the Medical Council of India Regulations. He also submitted that the Court proceeded on the basis that the scheme envisaged is not by way of a mere reservation but is one of classification of the sources from which admissions have to be made. Learned senior counsel submitted that by the application of clause-61(a), the merit is sacrificed and the dispute raised in K.Duraisamy's case was with reference to the prospectus for the year 1999-2000 when the Medical Council of India Regulations were not in force. Learned senior counsel referred to the decision of the Supreme Court in AIIMS STUDENTS' UNION v. AIIMS (2002 ) 1 SCC 428) and submitted that the Supreme Court in that case considered K.Duraisamy's case and held that the question whether merit can be sacrificed to such an extent as to be bidden almost a good-bye resulting in candidates too low in merit being preferred to candidates too high in merit and the margin of difference between the two being too wide, did not arise for consideration in K.Duraisamy's case. He submitted that there is a wide margin between the cut-off marks prescribed for open category and for inservice candidates and since merit