1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 146 OF 2005 1. Miss Ankita Subhash Lotlikar, (minor), aged about 16 years through her natural guardian and father Subhash Anant Lotlikar, r/o H.No.T3/A, Wilson Park, Fatorda, Salcete, Goa, 2. Master Malcolm Keith Dias, (minor), aged about 16 years through his natural guardian and father Dr. Steven Alan Dias, r/o S/8, Sapana Paradise, Merceswadi, Tiswadi, Goa, 3. Master Ambesh Vinayak Agni, (minor), aged about 16 years, through natural guardian father Vinayak Anant S. Agni, r/o Yashodhan, Tonca, Miramar, Goa, 4. Miss Dhashmi Subhash Kamat, (minor), aged about 16 years through her natural guardian and father Subhash Kamat, r/o TF/04, Church View building, Fr. Agnelo Road, Panaji, Goa, 5. Master Sanket Rajan Nayak, (minor), aged about 17 years, through his natural guardian and father Rajan N. Naik, r/o House No.392, Jeeven Jyot, 2 First Floor, Comba- Margao, Goa, 6. Miss Priyanka Paresh Barad, (minor), aged about 17 years, through her natural guardian daughter of Paresh Barad, Housing Board Colony, Margao, Goa, 7. Master Akhil Venktesh Gaitonde, (minor), aged about 16 years, through his natural guardian and father Venktesh U.P. Gaitonde, r/o C1. First Floor, Govardhan Building, Aquem, Margao, Goa, 8. Miss Divya Sanjay Prabhudessai, (minor), aged about 17 years, through her natural guardian and father Sanjay Sriranga Prabhudessai, r/o Ravanfond, Naveli, Salcete, Goa, and 9. Miss Vaibhavi K. Nadkarni, (minor), aged about 16 years, through her natural guardian and father Kishor Vaikunt Nadkarni, r/o Housing Board Colony, Margao, Goa. ... Petitioners. Versus 1. The State of Goa, through Chief Secretary, Secretariat, Panaji, Goa, 2. The Directorate of Technical 3 Education through its Director, Government of Goa, having office at Alto Porvorim, Goa, ... Respondents 1. Ms. Uma Sham Kamat, minor represented by her father and natural guardian Sham Jagannath Kamat, Panaji, Goa, 2. Master Dinar Govind Nasnodkar, (minor), aged 17 years, through his natural guardian and father Shri Govind Nasnodkar, r/o Chimbel, Ribandar, Goa, 3. Master Viraj Narayan Bhatkar, (minor), aged about 17 years, through his natural guardian and father Shri Narayan Bhatkar, residing opp. Junta House, Panaji, Goa, 4. Rina Cordeiro, minor by her next friend & father Cajetan Cordeiro, C-7, La Marina II, Near Chapel of Stella Marie, Miramar, Panaji, Goa, 5. Master Akhil Surendra Shenvi Kerkar, (minor) , aged about 17 years, through his natural guardian and father Shri Surendra Balwant Shenvi Kerkar, r/o Gulmohar A., Second Floor, behind Sy. Bank, Caranzalem, Goa, 6. Master Omkar Jairam Ghodge, 4 (minor), aged about 17 years through his natural guardian and father Shri Jairam Pandurang Ghodge, r/o 53, Cardoz Apartments, St. Caetano, Merces, Goa, 7. Miss Akshata Pradeep Colvalker, (minor), aged about 17 years, through her natural guardian and father Shri Pradeep Vithal Colvalker, r/o Heera Sadan, near KTC Depo, Alto Porvorim, Bardez, Goa, 8. Master Shriman Dnyaneshwar Pednekar, (minor), aged about 17 years, through his natural guardian and father Shri Dnyaneshwar Pundalik Pednekar, r/o Viyaj Nagar, Alto Porvorim, Goa, 9. Master Pritesh Prakash Rane, (minor), aged about 17 years, through his natural guardian and father Shri Prakash Rane, r/o B3- 9, Chamuunda Apartments, St. Cruz, Goa, 10. Master Rohan Ramesh Kamat, (minor), aged about 17 years, through his natural guardian and father Shri Ramesh A. Kamat, r/o Mary's Colony, Miramar, Panaji, Goa, 11. Master Anish Sanjeev Juwarkar, (minor), aged about 17 years, through his natural guardian 5 and father Shri Sanjeev J. Juwarkar, r/o Kamat Kinara, Miramar, Panaji, Goa, 12. Master Param Kamat, (minor), aged about 17 years, through his natural guardian and father Shri Dr. Pradeep Kamat, residing near Panchayat, Assagao, Bardez, Goa, 13. Master Rudresh Vishwanath Bandodkar, (minor), aged about 17 years, through his natural guardian and father Shri Vishwanath Bandodkar, r/o House No.1020/9, Opp. Viva Goa, Candolim, Bardez, Goa, 14. Master Saurav Mohandas Kamat, (minor), aged about 17 years, through his natural guardian and father Dr. Mohandas Kamat, r/o House No.169, B/7, Shantinagar, Ponda, Goa, 15. Master Gaurav Girish Chimulkar, (minor), through his natural guardian and father Mr. Girish Chimulkar, r/o Ponda, Goa, 16. Master Shridhar Ranganath Shenvi Usgaokar, (minor), aged about 17 years, through his natural guardian and father Ranganath Shenvi Usgaokar, r/o Khadpaband, Ponda, Goa, and 17. Mr. Sahun Max Mergulhao, through his natural guardian 6 and father Mr. Americo Mergulhao, r/o S-1, Excel- Elite, Caranzalem, Goa. ...Intervenors. Mr. A.N.S. Nadkarni, with Mr. H. D. Naik and Mr. N. Takkekar, advocates for the petitioners. Mr. M. B. D'Costa, Advocate General with Mr. J. A. Lobo, Addl. Government Advocate, for the respondent nos.1 and 2, later on as Amicus Curiae. Mr. S. S. Kantak, Advocate General with Mr. S. Vahidulla, Addl. Government Advocate for the respondent nos.1 and 2. Mr. S. K. Kakodkar, Senior Advocate with Mr. J. J. D'Souza, advocate for the intervenor no.1. Mr. M. S. Sonak, and Ms. P. Bharne, advocates for intervenors no.2, 3, and 5 to 16. Mr. A. F. Diniz, advocate for intervenor no.4. Mr. J. Godinho, advocate for intervenor no.17. CORAM : S. S. PARKAR & V. M. KANADE, JJ. DATE : 27th June, 2005 28th June, 2005 ORAL JUDGMENT (Per Parkar, J.) Like previous years, this year also the admission to professional courses has given rise to one more petition in this Court. This time, it is not regarding the holding of Goa Common Entrance Test ("GCET" for short), but with regard to 7 the weightage to be given to the result of the GCET. Only last year in this Court a petition was filed challenging the holding of GCET for admission to professional courses on the ground that announcement for holding the GCET was made belatedly and, therefore, a sort of consent order was obtained from this Court on 28th June, 2004, by way of interim relief restraining the State from holding GCET for the last academic year only, on the ground that adequate notice was not given for holding of the GCET. Accordingly, this year the Government had issued Circular in the form of advertisement dated 12th January, 2005, giving the dates for holding of the GCET for admission to various professional courses like MBBS, BDS, BE, B. Arch. and B. Pharm. for the academic year 2005- 2006. In that Circular it was indicated that merit list for admission to the various professional courses would be given by preparing a merit list by giving 75% weightage to the marks obtained in the qualifying examination and 25% weightage would be given to the marks obtained in GCET. Thereafter, one more Circular dated 17th March, 2005, was issued making a variation in the dates of the test for different subjects. Then the Government issued the impugned Circular dated 4th April, 2005, 8 Exh.`C' to the petition, in which it was stated that the Government had no alternative but to assign 100% weightage to the marks scored in the relevant subjects of Goa Common Entrance Test 2005 for preparing the merit list for admission to various professional degree courses mentioned above. It is this Circular which is under challenge in this petition filed under Article 226 of the Constitution of India, by a group of 9 students, through their guardians, who have appeared both for the qualifying examination of the Higher Secondary School Certificate as well as for the GCET. The said Circular is challenged mainly on the ground that the decision of the Government to conduct the Common Entrance Test with 100% weightage at short notice of less than one month was contrary to the earlier notice dated 12th January, 2005, and is, therefore, arbitrary, illegal and bad in law and in contravention of the judgment of the Division Bench of this Court in the case of Master Vasudeo @ Amey Subhashchan dra Kamat vs. State of Goa & Ors., (AIR 1997 Bom.114). There are other grounds also taken in the petition, which were also pressed at the time of the hearing of the petition, namely that the Government's reliance on the decision of the Apex Court in the case of Mridul Dhar (minor) & Anr. vs. 9 Union of India & Ors. , (AIR 2005 SC 666), is not correct and, therefore, there was non- application of mind on the part of the Government and in the State of Goa where there is only one Board conducting Higher Secondary School Examinations where almost 98% students appear, there is no necessity for holding GCET for giving admission to the professional courses. 2. It is not in dispute that so far as this State is concerned, holding of GCET for the purpose of giving admission to professional courses was announced for the first time last year, but the same was held ultimately this year as per the schedule announced in the above Circulars. The said tests were held on 30th April, 2005 and 2nd May, 2005. So far as the aptitude test for B. Arch. is concerned, it was held on 9th May, 2005. The present petition was filed on 11th April, 2005. As no interim stay was granted, not only the GCET was held as per the schedule announced by the Government, but the results not only of the GCET but also of the qualifying examinations are already out. The results of the GCET were declared on 1st June, 2005, while that of the 12th Standard were declared on 6th June, 2005. Since the 10 results of the two qualifying examinations as well as the GCET were declared before the hearing commenced in this petition, some students had intervened on either side and, as the decision in this petition was likely to affect one way or the other the intervenors, we had allowed the students to intervene in the petition and gave full hearing to the intervenors as well. 3. While issuing the impugned Circular of 4th April, 2005, it is stated that in view of the judgments of the Apex Court, the Circulars and Directives issued by Medical Council of India ("MCI" for short), University Grants Commission ("UGC" for short) and All India Council for Technical Education ("AICTE" for short), it had become mandatory for all states to conduct Common Entrance Test for admission to professional and technical degree courses and, therefore, the Government of Goa shall hold Common Entrance Test for admission to the First Year Degree Courses in Medicine, Dentistry, Engineering and Pharmacy in the various colleges of Goa. It was further stated in the said Circular that subsequent to the judgment of the Apex Court delivered in the case of Mridul Dhar (supra) on 12th January, 2005, the Government 11 had obtained legal advice and felt that it had no alternative but to assign100% weightage to the marks scored in the relevant subjects of the GCET 2005, for preparing merit list for admission to the various professional degree courses, like MBBS, BDS, B.Arch. and B. Pharm., etc. In reply to the petition, the Government has filed affidavit in which also the stand taken is that as per the decision of the Apex Court in the case of Mridul Dhar (supra) there was a mandate that the merit list should be prepared only on the basis of the marks obtained at the GCET, which is controverted and has been subject of attack on behalf of the petitioners. 4. The judgment of the Apex Court in Mridul Dhar's case (supra), was delivered on 12th January, 2005, i.e. the date on which the first Circular was issued by the Goa Government announcing that weightage of 25% would be given to the marks obtained at the GCET on which date the Government obviously was not aware as to the mandate given by the Supreme Court in that case. Thereafter, advice was obtained and finding that there was no alternative but to prepare the merit list only on the basis of the GCET, the impugned Circular of 4th April, 2005, was issued, superseding the earlier Circular dated 12th January, 2005, in 12 respect of weightage to be given to the two examinations. We were extensively taken through the judgment of the Apex Court in the case of Mridul Dhar (supra). However, we find that the Apex Court was only considering the effective utilization of 15% quota allotted to the all India medical and dental students and the observations made in that judgment pertain to the utilization of the quota on all India basis. Reference was also made extensively to the judgment of the Apex Court in the case of Islamic Academy of Education & Anr. vs. State of Karnata k a & Ors. , ( [2003]6 SCC 697), where a Five Judge Bench of the Apex Court was constituted to clarify the judgment of the Apex Court delivered by an Eleven Judge Bench of the Apex Court on 31st October, 2002, in the case of T.M.A. Pai Foundation vs. State of Karnata k a , ( [2002] 8 SCC 481). In those cases the Apex Court was concerned about the admissions to be given by private professional colleges not getting grant- in- aid from the Government and also by the minority institutions. None the less, the Apex Court has made observations that wherever the qualifying examinations are held by more than one agency, the admission to the professional colleges should be given on the basis of merit achieved at the Common Entrance 13 Test. Then it was laid down that either the Common Entrance Test should be held by the concerned State Government or by the Association of Colleges. The emphasis laid down by the Apex Court was that the admissions for professional courses should be on the basis of merits assessed at an examination where uniform standard is observed for the assessment of the merits of the students . 5. So far as this State is concerned, though there is only one Board holding High Secondary School Certificate Examination for the 12th Standard students and most of the students from this State who seek admission for the professional courses had appeared for the Higher Secondary School Certificate Examination held by the one Board, at least 2% of the students appeared for examinations held by the Central Board of Secondary Education (CBSE) and the Indian Council of Secondary Education (ICSE) and, accordingly the petitioners' counsel did not contest the position that in Goa also, the need to hold Common Entrance Test would be necessary in view of the rules and regulations made by the MCI and AICTE. During the course of the arguments, Mr. 14 Nadkarni, learned counsel appearing for the petitioners, also did not contest the position that when GCET is held the list of merit for the purpose of giving admission to the professional courses should be prepared on the basis of the GCET alone, i.e. by giving 100% weightage to the results of the GCET, but his only grievance is that the weightage to be given should not have been changed/increased from 25% to 100% to the marks obtained at the GCET after having made announcement on 12th January, 2005, that only 25% weightage would be given by the Government for preparing the merit list for admission to professional courses. 6. So far as the admission to professional courses is concerned, the power vests in the MCI under Section 33 of the Medical Council Act, 1956, pursuant to which power the Medical Council of India Regulations On Graduate Medical Education, 1997, ("Regulations" for short), were made and Rules have been framed. We are concerned with Rules 4 and 5 of the Regulations. Rule 4 lays down the the eligibility criteria for admission to medical courses and states that in order to be qualified for getting admission to the medical courses, the students must have passed 15 the High Secondary Examination and Indian School Certificate Examination. Rule 5 pertaining to selection of students lays down as under:- 5. Selection of Students: The selection of students to medical college shall be based solely on merit of the candidate and for determination of merit, the following criteria be adopted uniformly throughout the country: (1) In states, having only one Medical College and one university/board /examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration; (2) In states, having more than one university/board /examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be a variation of standard at qualifying examination conducted by different agencies; (3) Where there are more than one college in 16 a state and only one university/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges; (4) A competitive entrance examination is absolutely necessary in the cases of Institutions of All India character; (5) Procedure for selection of M.B.B.S. course be as follows:- (i) In case of admission on the basis of qualifying examination under clause (1) based on merit, a candidate for admission to M.B.B.S. course must have passed in subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in Clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above. (ii) In case of admission on the basis of competitive entrance examination under 17 clauses (2) to (4) of this regulation a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in clause (2) of regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above. Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the M.B.B.S. course, he shall not be admitted to 18 that course until he fulfils the eligibility criteria under regulation 4. Sub- rule (2) of Rule 5 makes it clear that in states having more than one Board a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies. Thus, wherever there is one Board conducting qualifying examination holding of competitive entrance examination is not necessary. Secondly, it has laid down that at least 50% marks must have been obtained at the qualifying examination in subjects like Physics, Chemistry and Biology taken together, so also in the competitive examination. Under Section 10 of the AICTE Act, rules have been framed whereby the admission to engineering courses has to be given on the basis of the merits obtained at the Common Entrance Test. The only difference is that for the engineering course, the student is not required to obtain minimum 50% marks in the competitive examination in the subjects of Maths, Physics and Chemistry. On the basis of these Rules the Government of Goa like other Governments had received directives from MCI, UGC and AICTE, that they must conduct Common Entrance Test for 19 admission to professional medical and technical courses. The Apex Court also held that it is necessary to hold Common Entrance Test for the purpose of giving admission to the medical and engineering courses on the basis of the aforesaid Rules, considering the importance of holding Common Entrance Test for the proper assessment of merits of the students aspiring to get admission for professional courses at an examination held on uniform basis. In the case of Islamic Academy of Education, (supra), it was held by the Apex Court that either the admission should be given on the basis of Common Entrance Test conducted by the State or on the basis of the Common Entrance Test conducted by Association of all colleges of that type in the State. 7. On behalf of the respondents the decision of the Apex Court in the case of Ravindra Kumar Rai vs. State of Maharahstra & Ors. , ( [1998] 3 SCC 183) was pressed in service. That was a case where a student had filed a writ petition under Article 32 of the Constitution of India before the Apex Court seeking direction against the Government of Maharashtra for holding Common Entrance Test as per Regulation 5(2) made by the MCI. 20 Quoting a passage from the judgment of the Apex Court in the case of Shri Chander Chinar Bada Akhara Udasin Society vs. State of J. & K. , ([1996] 5 SCC 732), about the need for Common Entrance Test, the Apex Court had issued direction to the State of Maharashtra for holding the Common Entrance Test for admission to Medical Colleges in Maharashtra for the year 1998 and conducting the said examination in accordance with the Regulations made by the MCI. 8. On behalf of the intervenors, reliance was also placed on the case of Dr. Preeti Srivastava & Anr. vs. State of M.P. & Ors. , ( [1999] 7 SCC 120), wherein it was held by the Apex Court that the scheme of the Indian Medical Council Act, 1956, does not give an option to the Universities to follow or not to follow the standards laid down by the MCI. Reliance was also placed on the earlier judgment of the Apex Court in the case of Medical Council of India vs. State of Karnata k a , ( [1998] 6 SCC 131), in which it was held that the MCI Regulations have a statutory force and are mandatory. It was also held that whether the lower minimum qualifying marks for the reserved category could be 21 prescribed at the post graduate level of medical education for the reserved seats must be decided by the MCI and not by any other authority. Thus, the emphasis is laid so far as the criteria for giving admission to the medical courses is concerned on the Rules framed by the MCI and it was held that no other authority can decide the criteria for giving admission for the medical courses. In the case of Harish Verma & Ors. vs. Ajay Srisvatava & Anr. , ([2003] 8 SCC 69), while dealing with the admission to medical colleges, and in particular admission to postgraduate courses in medical colleges, it was held by the Apex Court that the Regulations have statutory force and are mandatory, relying upon the Constitution Bench judgment of the Apex Court in the case of Dr. Preeti Srivastava (supra). 9. Reading Rule 5 of the Regulations leaves no doubt that the admission for the First Year of the MBBS course has to be given on the basis of the merit assessed at the Common Entrance Test. Rule 5 starts with the words "the selection of students to medical college shall be based solely on merit of the candidate and for determination of merit " the criteria laid down in 22 the different clauses of the said Rule "shall be adopted uniformly throughout the country" . A similar provision is made in the Rules framed by the AICTE under Section 10 of the AICTE Act. Rule 5 of the Regulations framed by the MCI had been subject of discussion in various judgments of the Apex Court. The view expressed by a Constitution Bench of the Apex Court in the case of Dr. Preeti Srivastava (supra), leaves no