1 IN THE HIGH COURT OF BOMBAY A T GOA WRIT PETITION NO. 260 OF 2005 WITH MISCELLANEOUS CIVIL APPLICATIONS NO. 482, 483,484,485,486,487 & 489 OF 2005 1. Master Saurabh Mohandas Kamat, student, aged 17 years, through his natural guardian and mother Smt. Nilima Kamat, r/o Ponda, Goa, 2. Master Siddhesh Devadas. student age 17years, through his natural guardian and father Shri Somnath Devadas, r/o Ponda, Goa, 3. Miss Mayuri Mohan Naik, student, age 17 years, through her natural guardian and mother Smt. Sujata Mohan Naik, r/o Ponda, Goa, 4. Miss Deepti Dinesh Lotlikar, student, age 17 years, through her natural guardian and father, Shri Dinesh Lotlikar, r/o Betalbatim, Goa. ... Petitioners Versus 1. State of Goa, through its Secretary of Education, with his office at Secretariat, Legislative Assembly Complex, Porvorim, Goa and 2 2. The Directorate of Technical Education, Government of Goa, through its Director, with his office at Alto Porvorim, Goa. .... Respondents. Mr. V. P. Thali with Ms. G. Pednekar, advocates for the petitioners. Mr. S. S. Kantak, Advocate General with Ms. G. Bhonsle, Addl. Government Advocate for the respondents. Mr. M. S. Sonak with Ms. Pooja Bharne, advocates for the intervenors in M.C.A. No.482, 483 & 484 of 2005. Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo, advocate for the intervenors in M.C.A. No.485 of 2005. Mr. V. A. Lawande, advocate for the intervernors in M.C.A. No. 486 of 2005. Mr. M. P. Amonkar, advocate for the intervenors in M.C.A. No.487 of 2005. Mr. R. Satardekar, advocate for the intervenors in M.C.A. No.489 of 2005. CORAM : S. S. PARKAR & V. M. KANADE, JJ. DATE : 28th/ 2 9thJuly, 2005. ORAL ORDER (Per Parkar, J.) By this petition, four students seeking admission to medical faculty as their first preference have challenged the final merit list displayed on 13th July, 2005, for admission to medical and dental faculties on the ground that the said list was prepared 3 in violation of Clause 5(5) (ii) of the Regulations framed under Section 33 of the Indian Medical Council Act, 1956 as amended in the year 1999 ( "Regulations" for short). 2. The aforesaid petition has been filed in the following background. As per the Rules and Regulations and the Prospectus issued for the academic year 2005- 2006 by the Director of Technical Education, Goa, the list of eligible candidates was put up on 8th July, 2005. Thereafter on 11th July, 2005, provisional merit list was displayed on the basis of comparative merits of the students who had passed the qualifying examination as well as Goa Common Entrance Test ("GCET" for short) and objections were invited. Thereafter the final merit list was displayed on 13th July, 2005, in which though the order of merit had not changed, but it affected the rights of the candidates from the general category like the petitioners, for securing admission to the medical and/or dental faculties from the seats that might be transferred to the general category for non- availability of sufficient number of candidates belonging to reserved categories of SC/ST/OBC. It is not in dispute that as per the provisional merit list displayed on 11th July, 2005, the seats which are reserved for the above three 4 reserved categories, would have remained unavailed of because of the shortage of the candidates with merit in the reserved categories. We were told across the Bar by the learned counsel for the respondents that 17 seats would have remained vacant for non- availability of candidates from the reserved categories. Significantly, it is also not in dispute that all the transferred seats were not likely to be filled for want of adequate merited students in the general category. However, the list which was put up on 13th July, 2005, showed that sufficient number of candidates even from the reserved categories were available for availing of the seats which were reserved for the students belonging to the above three categories and, therefore, no seat from the reserved category had remained vacant which could be transferred to the general category at the end of the admission round of the reserved category. According to the petitioners, the final merit list prepared on 13th July, 2005, is liable to be quashed and set aside as the Clause 5 (5) (ii) of the Regulations was not complied with as a result of which the candidates belonging to the reserved category who had obtained less than 40% marks were also shown on the merit list and, therefore, the petitioners were deprived of their right to avail 5 of the admission for medical or dental faculties, from the seats which would have been transferred from the reserved category to the general category. 3. As against that, on behalf of the respondents, an affidavit dated 19th July, 2005, has been filed by one G. V. Prabhu Gaonkar, who was holding the charge of Director of Technical Education. In the said affidavit, it is stated that even the merit list displayed on 13th July, 2005, has not contravened Clause 5(5) (ii) of the Regulations as the merit list was prepared of the candidates who had scored minimum prescribed marks at the GCET. It is stated that since at the GCET the negative marks were given to the students for giving wrong answers, the percentage was counted taking into consideration negative marks given for wrong answers. In paragraph 11 of the reply affidavit, it is stated as follows:- "11. I submit that the Merit List which is displayed is in tune with MCI Regulations and there is no breach of the same as will be shown below:- (a) Each paper comprised of 50 multiple choice questions with 4 marks for each correct answer and negative (-1 mark) for 6 each wrong answer. Thus in each paper the candidate with all 50 correct answers could score 50 x 4 = 200 as maximum marks and that candidates with all 50 wrong answers could score 50 (-1) = -50 marks as minimum. Thus marks which the candidates score are spread over a range from a minimum of minus 50 marks to maximum of plus 200 marks for each paper and therefore in the three papers of Physics, Chemistry and Biology taken together, minimum -150 to maximum of +600 is taken for the purposes of relative placement. (b) The MCI Regulations provide that the minimum marks obtained in all 3 subjects should be 40 percent. Thus, if in any paper the candidate scores "ZERO" as minimum marks and 100 as maximum marks, then the candidates who have scored in a bracket of 0-49 marks (General Category) and 0-39 marks (in case of SC/ST/OBC Categories) are treated as not eligible for admissions. (c) Thus for marks from the minimum of -50 to a maximum of +200, that is over the range of 250 marks, the first bracket of 50% (general category) works out to be 0.5 x 250 = 125 and for reserved category, it works out 7 to 0.4 x 250 = 100. Therefore, the candidates who scored beyond this bracket that is more than +75 (-50 + 125 = 75) for General Category and +50 (-50 + 100 = +50) for reserved category are to be considered to be eligible for each subject. Therefore since the MCI regulations prescribed for marks in all subjects taken together the cut- off marks works out to 225 of the maximum 600 in General Category and 150 out of maximum 600 in Reserved Category." It was therefore submitted on behalf of the respondents that Clause 5 of the Regulations has not been deviated from when the final merit list was displayed on 13th July, 2005. 4. This petition was moved before us on 18th July, 2005, directly in the Court, after giving notice to the office of the Government Advocates. Since the learned Advocate General had no instructions in the matter, the matter had to be placed on the next day's board. In the meantime, the respondents were directed not to give admission to the students belonging to the reserved categories, i.e SC/ST /OBC, who had got less than 240 marks in the aggregate in the subjects of Physics, Chemistry and 8 Biology ("PCB" for short) in the GCET for the medical and dental faculties, unless they were already admitted. On 19th July, 2005, when the matter was called out before us, preliminary objection was raised by the learned Advocate General that the students who were likely to be affected by the petition ought to be given notice and, accordingly, the petitioners were allowed to give public notice in four newspapers of Goa, as a result of which applications have been moved by the intervenors by filing affidavits and, therefore, the matter was kept for hearing on 25th July, 2005. 5. On behalf of the petitioners several contentions have been raised. Firstly, it is contended that the merit list displayed on 13th July, 2005, has in effect violated the requirement of minimum percentage for being in the merit list for admission to the medical and dental faculties. According to the petitioners, if the criteria laid down in the regulations is to be followed, then out of total 600 marks at the GCET a candidate from general category ought to have obtained minimum of 300 marks and the candidates belonging to the above three reserved categories ought to have obtained 240 marks, so as to comply with the Regulations requiring minimum 50% and 40% marks respectively 9 for the general category candidates and the reserved category candidates. By the 13th July, 2005 merit list the candidates who had obtained less than 300 and 240 marks were shown on the merit list, as a result of which though there was no sufficient number of candidates from the reserved category having obtained 240 marks in the GCET they were made eligible to get admission for the medical and dental faculties. Consequent upon the said lowering of the marks the seats which otherwise would have remained vacant in the reserved categories and, therefore, could be transferred as unclaimed/vacant seats to the general category, were allotted to the candidates belonging to the reserved categories, though they had obtained less than 240 marks in aggregate in subjects like PCB. It was contended on behalf of the petitioners that this amounted to lowering the standard laid down by the Medical Council of India and, therefore, was not permissible as held in some judgments of the Supreme Court, and this Court. 6. So far as this contention is concerned, on behalf of the respondents it has been argued that the State Government had to follow the Regulations whereby the candidates belonging to the reserved categories could become eligible to be put 10 on the merit list in case they get minimum of 40% marks and that criterion has not changed. According to the respondents, after the display of the provisional list on 11th July, 2005, certain objections were received and thereafter, the Committee of experts was convened on 12th July, 2005, which consisted of the Dean of the Medical College and Principals of the Engineering Colleges in Goa. In their meeting they found that because of the provision for negative marks in the GCET 50% of 600 would not be 300, but would be 225 marks and 40% of 600 would be 150 and not 240 marks. How these figures of 225 and 150 were arrived at has been explained in paragraph 11 of the reply affidavit filed by the Director of Technical Education which is quoted hereinabove. It is also argued on behalf of the respondents that the requirement laid down in the regulation is about percentage of 50 and 40 and not that a candidate must obtain 300 or 240 marks as such. 7. On behalf of the petitioners, challenge is made that by the direct or simple method by which the percentage can be worked out there can be no doubt that 50% of the total marks of 600 would mean 300 i.e. the minimum marks required by the students belonging to the general category and 40% would mean 11 240 marks required to be obtained by the students belonging to the aforesaid three reserved categories. Instances were given to us of other States or institutions where the provision of transfer of seats to general category from the reserved categories have been made. Our attention was brought to the prospectuses of Armed Forces Medical College, Pune, Indian Institutes of Technology, All India Pre- Medical/Pre- Dental Entrance Examination 2005, All India Institute of Medical Sciences, New Delhi and All India Engineering/Architecture Entrance Examination, 2005. In the above institutions also a similar provision is made about negative marks in the competitive examinations, except that the ratio differs. Whereas the ratio in the GCET is 1 : 4, i.e. so far as the negative vis-a- vis positive marks are concerned the aforesaid institutions have given ratio of 1 : 3 but that will not make a difference. In those institutions also there is a provision for transfer of unfilled seats to the general category from the reserved categories, but it is not brought to our notice as to how the percentages have been calculated in those institutions. We assume that they might have also applied the direct or simple method as understood by all and there is no doubt that even the Director of 12 Technical Education, Goa, also applied initially the same direct or simple method of calculating the percentage and thereby the provisional list of 11th July was prepared. 8. It is argued on behalf of the petitioners that the merit list of 13th July, 2005, was prepared by adopting different method or device to calculate the percentage either to accommodate the candidates belonging to the reserved categories as 17 seats were remaining vacant and were, as per the rule of transfer given in the prospectus, liable to be trasferred to the general category, or to see that no medical/dental seats lapse. It was stated by the learned Advocate General on behalf of the respondents, that 17 seats were likely to lapse by following the merit list of 11th July, 2005, prepared on the basis of calculating the percentage by direct or simple method, normally known or understood by the people. He also stated and there is no dispute that even if those 17 seats had been transferred to the general category still about 8 or more seats would lapse for insufficiency of merit candidates even in general category. Therefore the allegation that the merit list of 13th July, 2005 was prepared as a subterfuge for giving admission to the candidates belonging to the reserved 13 categories, does not appear to be correct. 9. In support of the petition a number of judgments have been cited not only on behalf of the petitioners, but also the intervenors who sought to intervene in support of the petitioners because in case the petition is allowed and the merit list of 11th July, 2005 is restored, they are also likely to get the admission either for medical or dental faculties. Firstly, reliance was placed on the judgment of the Supreme Court in the case of State of Punjab vs. Dayanand Medical College & Hospital & Ors. , [ (2001) 8 SCC 664]. In that case, referring to the judgment of the Constitution Bench of the Supreme Court in the case of Dr. Preeti Srivastava vs. State of Madhya Pradesh , [ (1999) 7 SCC 120], it was held that the State can only add to the conditions for admission to the professional courses, subject to the standard laid down by the Union of India, i.e. by the Regulations of the Medical Council of India. It is well-settled that the standard laid down by the Medical Council of India is mandatory in nature and has to be complied with strictly and the State can only, if at all, put additional conditions to raise the standard for admission, but not to lower the standard. 14 10. Reliance was also placed on the judgment of the Supreme Court in the case of Dr. Indu Kant vs. State of U.P. & Ors. , [ 1993 Supp (2) SCC 71]. In that case the Apex Court had held that the rule laying down the minimum percentage of marks in the entrance examination is valid and no direction can be given to the State Government to fill up any vacant seats by the candidates securing less than minimum qualifying marks. The next judgment relied on is in the case of State of Uttar Pradesh & Ors. vs. Dr. Anupam Gupta & Ors. , [ 1993 Supp. (1) SCC 594]. Distinguishing the judgment of the Supreme Court in the case of Jeevak Almast vs. Union of India , (AIR 1988 SC 1812), it was held that since that was a case of post- graduate specialized courses the standard could not be lowered in any way and, therefore, the merit could not be compromised and consequently, the admissions given by lowering down the standards in order to fill the vacant seats was struck down. The next case relied on by the counsel for the petitioners is in the case of Dean, Goa Medical College, Bambolim, Goa & Anr. vs. Dr. Sudhir Kumar Solanki & Anr. , [ (2001) 7 SCC 645], wherein it was held that the eligibility criteria for the medical courses which is statutorily stipulated, 15 cannot be held to be directory. There the Supreme Court was considering the eligibility criteria of ten years residence in the State of Goa. The Full Bench of this Court had allowed the students admission holding that the rule of ten years' eligibility is directory in nature. Though the Supreme Court took exception to the view taken by the Full Bench of this Court, ultimately it did not disturb the admission given by relaxing the rules. 11. Reliance is also placed on the judgment of the Supreme Court in the case of Gurdeep Singh vs. State of J. & K. & Ors. , [ 1995 Supp (1) SCC 188]. That was a case where there were 12 vacant seats which were sought to be filled from the quota of the sports category. The allotment of the seats from that quota was challenged by another student and the said challenge was upheld on the ground that one student was given admission by adding mountaineering sports to the list of sports category and from that fact it was quite obvious that the said sport was added with a view to favour a particular student, as a result of which another student who could have been considered and allotted the seat was deprived of the same. In that context, the Supreme Court held that it was a mala fide exercise of power and the advantage 16 was secured by "strategem and trickery", but the Supreme Court hastened to add that the courts do and should take human and sympathetic view of matters. Thus, the said allotment of seat was struck down on the ground of attribution of eligibility long after the selection process was over and, therefore, it was held to be a case of mis- use of power. It was observed that a tendency of that kind where advantage is gained by illegal means cannot be permitted to be retained as it jeopardized the purity of the selection process itself. Reference was also made to the judgment of the Supreme Court in the case of Dr. Sadhna Devi & Ors. vs. State of U.P & Ors. , (AIR 1197 SC 1120), where the question was again about the admission to the post- graduate medical courses. There were also reservations made for the SC/ST/OBC. Dispensing with the requirement of obtaining minimum qualifying marks in entrance examination was held not to be permissible. That was a case where the condition of obtaining minimum marks was relaxed because otherwise seats available to the reserved class could not have been filled from that category. Setting aside the allotment of a seat to a candidate from the reserved category by lowering the standard of admission, it was held that if the candidates from the 17 reserved category failed to secure even the minimum qualifying marks, then the seats reserved for them should not be allowed to go waste, but should be made available to the candidates belonging to the general category, otherwise there would be "a national loss". 12. Strong reliance was placed on the aforesaid judgments on behalf of the petitioners and it was pointed out that in the present case there was already a provision for transfer of such seats to the general category, in case the seats are not filled by candidates from the reserved category. Then reference was made to the judgment of the Supreme Court in the case of Harish Verma & Ors. vs. Ajay Srivastava & Anr. , [ (2003) 8 SCC 69]. In that case the admissions given to the post- graduate medical education to in- service candidates, who had secured marks less than the minimum prescribed by Regulation 9 framed by the Medical Council of India, were struck down and set aside as an inevitable consequence for which the successful candidates who would be held entitled to admission for the said course on merits, could not be made to suffer for no fault of theirs. Reference was also made to the judgment of the Constitution Bench of the 18 Supreme Court in the case of Dr. Preeti Srivastava, (supra), in which it was held that the Rules and Regulations enacted by the Medical Council of India are mandatory, having statutory force and must be complied with and the authorities have no power to lower the standard for admission to the medical courses. That was also a case where the Court was considering the admission to the post- graduate courses in medicine. 13. As against this, the learned Advocate General on behalf of the State has pointed out to us that there were in all 100 seats available for medical faculty, out of which 15% seats i.e. 15 seats are ear- marked for the candidates from All India quota and the remaining 85 seats were available for the State. Out of these remaining 85 seats, 29 seats are available for the reserved category and 45 seats for medicine are available for the students from the aforesaid three categories, while 11 seats are reserved for other categories, but they qualify only in case they get 50% marks. Thus, the 29 seats allotted to the three reserved categories i.e. SC/ST/OBC could be filled from the candidates belonging to those three categories who have obtained minimum 40% marks in GCET. It was further pointed out that considering that no qualified 19 candidate is available from the physically handicapped and freedom fighters categories, there would be net 8 seats vacant if the admissions were to be given as per the merit list of 11th July, 2005. It is also stated by the learned Advocate General that like last year, this year also there is possibility of some seats reverting to the State from the All India quota. 14. Relying on the aforesaid judgments cited on behalf of the petitioners, it was strongly contended by Mr. Thali that a different method or device ought not to have been adopted for calculating the percentage in order to see that no seats remained vacant. It is true that if there are no candidates eligible having minimum standard of qualification, it would be better that the seats go vacant, rather than allotting them to the candidates who are below standard. On behalf of the respondent, the learned Advocate General has categorically denied that the merit list of 13th July, 2005, was prepared by adopting a different method of calculating the percentage of marks with a view either to accommodate the candidates belonging to the aforesaid three reserved categories, or to see that no seats lapse. He also pointed out to us that in the reply affidavit