S.C. PARIJA, J. W.P.(C) NO.18599 OF 2011 (Decided on 01.11.2011) ASHOK KUMAR MISHRA ………Petitioner. .Vrs. STATE OF ORISSA & ORS. ……….Opp.Parties. EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.115. For Petitioner - M/s. A.K.Mohapatra, N.C.Rout, S.K.Padhi, S.K.Mishra & A.H.Khadanga. For Opp.Parties- Addl. Govt. Advocate (for Opp.Party Nos.1 & 4) M/s. S.Palit, A.K.Mahana, A.Mishra & d.N.Pattnaik (for Opp.Party No.2) M/s. R.C.Mohanty, K.C.Swain & S.Mohanty (for Opp.Party No.3) S.C. PARIJA, J. This writ petition has been filed challenging the upper age limit of 25 years prescribed by the Orissa Joint Entrance Examination-2011, (‘Orissa JEE- 2011’ for short) as the minimum eligibility criteria for admission to 1st year MBBS Course. 2. The case of the petitioner is that pursuant to the Information Brochure published by the Orissa JEE-2011, inviting applications from the candidates for admission to 1st year MBBS Course, the petitioner applied for the same in the prescribed format accompanied by requisite documents. The date of birth of the petitioner is 10.05.1984. Though, clause-4.2 of the said Information Brochure published by the Orissa JEE-2011 prescribed the upper age limit of 25 years as on 30.12.2011, the petitioner’s application was accepted by the Orissa JEE-2011 and he was issued with admit card for appearing in the entrance examination. Accordingly, the petitioner appeared in the entrance examination held by Orissa JEE-2011 and was ranked 141 under general category and 36 under the Green Card holder category in the merit list. Subsequently, when the petitioner approached the Orissa JEE-2011 for issue of rank card, so as to enable him to participate in the counselling for taking admission in 1st year MBBS Course, he was informed that as his age is above 25 years, as on 31.12.2011, he cannot be permitted to participate in the counselling as per clause-4.2 of the Information Brochure. 3. Learned counsel for the petitioner assails the reasonableness and legality of clause-4.2 of the Information Brochure published by Orissa JEE-2011, on the ground that as the Medical Council of India (‘MCI’ for short) has framed Regulations on Graduate Medical Examination, 1997, with the previous sanction of the Central Government, in exercise of its power under Section 33 of the Indian Medical Council Act, 1956, prescribing minimum age of 17 years, as on 31st December of the year of the entrance examination for admission to MBBS Course, the prescription of upper age limit of 25 years by the Orissa JEE-2011 is improper, illegal and without jurisdiction. In this regard, it is submitted that as the MCI is the apex body constituted by the Central Government under the provisions of the Indian Medical Council Act, 1956, for regulating admission to MBBS Course and the said MCI having framed Regulations for that purpose, with the approval of the Central Government, prescribing minimum age of 17 years, for admission to MBBS Course, it is not open for the State Government or the Orissa JEE-2011 to prescribe a different or additional eligibility criteria by way of upper age limit of 25 years. Further, the petitioner has filed copies of the prospectus of some universities and institutions of other States to show that no such upper age limit has been prescribed for admission to MBBS Course and therefore the impugned action of the Orissa JEE- 2011 in prescribing upper age limit of 25 years is unreasonable and illegal. 4. Learned counsel for the petitioner has referred to two candidates, namely, Sonali Subhadarsini and Jana Ranjan Nayak, who according to the petitioner were more than 25 years of age and have been allowed to take admission in the 1st year MBBS Course, while denying similar benefit to the petitioner. This, according to the petitioner is discriminatory and amounts to arbitrary exercise of power by the Orissa JEE-2011. It is the further plea of the petitioner that as the Orissa JEE-2011 had allowed the petitioner to appear in the entrance examination and he had been allotted with a rank, as per the merit list, they are estopped from refusing admission to the petitioner in the 1st year MBBS Course. 5. Learned counsel for the Orissa JEE-2011, opposite party no.2, with reference to the counter affidavit filed submits that clause-4.2 of the Information Brochure published by the Orissa JEE-2011 clearly stipulated that a candidate seeking admission to 1st year MBBS Course must be below 17 years and not above 25 years as on 31.12.2011. The petitioner, whose date of birth, as per his birth certificate was 10.05.1984, having applied for appearing in the entrance examination for admission to MBBS Course as per the said Information Brochure, was fully aware that he was not eligible. It is submitted that though the petitioner had furnished his birth certificate, due to inadvertent oversight, he had been allowed to appear in the entrance examination, though he was not eligible. Subsequently, during verification of the application forms of the candidates, when it came to the knowledge of the Orissa JEE-2011 that the petitioner’s date of birth, as per his birth certificate is 10.5.1984 and is aged more than 25 years, he has not been issued with the rank card and not permitted to participate in the counselling for admission to 1st year MBBS Course. Accordingly, it is submitted that allowing the petitioner to appear in the entrance examination being a mistake of fact, which was due to inadvertent oversight, the petitioner cannot claim any benefit for the same as of right. 6. Learned counsel for the Orissa JEE-2011 further submits that as the Information Brochure published by the Orissa JEE-2011 has been formulated by the Policy Planning Body, constituted by the State Government under Section 4(1) of the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007, for regulating admission to Engineering/Technology, Medicine/Dentistry, Pharmacy, etc. in exercise of its powers under Section 4(6) of the said Act, which authorizes the Policy Planning Body to determine the eligibility criteria for admission, the same cannot be said to be without authority of law. It is pleaded that similar upper age limit of 25 years had also been prescribed by the 2 Orissa JEE-2011 for the previous two years, i.e., 2009 and 2010 and the same has been continued in the present academic year 2011. It is further submitted that similar upper age limit of 25 years has been prescribed for the candidates appearing in the All India Pre-Medical/Pre-Dental Entrance Examination-2011, conducted by the Central Board of Secondary Education and 15% of the seats in Medical and Dental Colleges of the State are reserved for such candidates and therefore the fixation of upper age limit by the Orissa JEE-2011 cannot be said to be arbitrary or illegal. It is further pleaded by Orissa JEE-2011 that the lower age limit of 17 years and upper age limit of 25 years, as on 31.12.2011, allows a candidate after passing +2 examination, 8 years and as many chances to apply and qualify for MBBS Course and therefore the fixation of upper age limit of 25 years by the Orissa JEE-2011 cannot be said to be an unfair and unreasonable restriction. 7. As regard the power of Orissa JEE-2011 to prescribe upper age limit in addition to what has been prescribed by the MCI in its Regulations, learned counsel submits that as no upper age limit for candidates seeking admission to MBBS Course has been prescribed by the MCI, the State is not denuded of its power to fix such upper age limit, especially when the same does not adversely affect the norms laid down by the MCI. It is accordingly submitted that the fixation of upper age limit of 25 years is an additional eligibility criteria prescribed by the State Government, for maintaining high standard of medical education in the State and to regulate admission to MBBS course by short listing the applicants in an effective manner, when there are more applicants than available seats. 8. Coming to the plea of the petitioner that admissions have been given to two over aged candidates, the Orissa JEE-2011 has explained in its counter affidavit that with regard to the candidate, namely, Sonali Subhadarsini, her date of birth as per her birth certificate is 30.12.1986 and so her age as on 31.12.2011 was 25 years and 01 day. As the time of birth is not mentioned in the birth certificate, she has been given the benefit of doubt of one calendar day. As regard the other candidate, namely, Jana Ranjan Nayak, the same has been stoutly denied by the Orissa JEE-2011. 9. The MCI-opposite party no.3 in its counter affidavit has stated that the MCI has framed Regulations on Graduate Medical Education, 1997, in exercise of its power under Section 19A read with 33 of the Indian Medical Council Act, 1956, with the prior approval of the Central Government, for maintaining high standard of medical education in the country. It is further stated in the counter affidavit that the MCI has prescribed the minimum age of 17 years as on 31st December of the year of the entrance examination as the eligibility criteria for admission to MBBS Course and the same cannot be treated as exhaustive and it is open for the State to prescribe further condition of eligibility in exercise of power vested in it under Entry 25 of the Concurrent List (List III) of the Constitution. Accordingly, it is submitted by learned counsel for the MCI that the State is empowered to impose additional eligibility criteria which are not contrary to and in derogation of the eligibility criteria prescribed by the MCI. Learned Addl. Government Advocate with reference to the counter affidavit filed by opposite party no.4 reiterates the stand taken by the 3 Orissa JEE-2011 and submits that as the State Government has the power to prescribe additional or further eligibility criteria for admission to 1st year MBBS Course, which are not in conflict with the norms fixed by the MCI under its Regulations, the upper age limit of 25 years prescribed by the Orissa JEE-2011 cannot be faulted. 10. The State Government enacted the Orissa Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2007 (the ‘Act’ for short) to provide for the regulation of admission, fixation of fee, prohibition of capitation fee, reservation in admission and for other measures to ensure equity and excellence in professional educational institutions and for matters connected therewith or incidental thereto. Section 3 of the Act provides for the method of admission in professional educational institutions, which reads as under : “Subject to the provisions of this Act, admission of students in all private professional educational institutions, Government institutions and sponsored institutions to all seats including lateral entry seats, shall be made through JEE conducted by the Policy Planning Body followed by centralized counselling in order of merit, in accordance with such procedure as recommended by the said body and approved by the Government.” Section 4 of the Act deals with composition and functions of the Policy Planning Body and sub-section (1) thereof provides as follows: “4 (1) The Government shall constitute a body to be known as the Policy Planning Body consisting of following members nominated by it, namely:- “(a) The Secretary to Government, Industries Department, who shall be the Chairperson ; (b) The Secretary to Government, Health and Family Welfare Department; (c) The Secretary to Government, Higher Education Department; (d) Vice-Chancellor, BPUT; (e) A person having experience in administering admission and examination of a joint entrance in professional education; (f) Director, Medical Education and Training, Orissa ; (g) Director, Technical Education and Training, Orissa, who shall be the Member-Secretary; and (h) Two members from the Orissa Legislative Assembly to be elected from among themselves.” Sections 4 (6) and (7) of the Act reads as under: “(6) The Policy Planning Body shall perform the following functions namely:- (a) regulate the admission; 4 (b) formulate policy guidelines for holding JEE; (c) constitute one or more sub-committees for efficient discharge of its functions in the matter of examination and admission; (d) formulate and recommend the reservation policy to Government for approval, which shall be with regard to reservation of seats in favour of Scheduled Castes, Scheduled Tribes, SEBC, green card holders, Ex- servicemen, sports persons and physically handicapped persons; (e) determine the eligibility criteria and qualifying examination required for admission; and (f) perform such other functions as may be prescribed. (7) The Policy Planning Body shall supervise and guide the entire process of admission of students to the Government Institutions, private professional educational institutions and sponsored institutions with a view to ensuring that the process is fair, transparent, merit-based and non-exploitative.” 11. On a perusal of Clause 4.2 of the Information Brochure published by the Orissa JEE-2011, it is seen that the State has prescribed minimum eligibility criteria for admission to 1st year Medical Stream (MBBS/BDS), prescribing lower age limit of 17 years and upper age limit of 25 years as on 31.12.2011 with upper age limit relaxation by 3 years for SC/ST candidates. Clause 4.2 of the Information Brochure reads as under : “4.2 For admission to 1st Year Medical Stream (MBBS/BDS) (i) Pass in 10+2 or appearing in 2011 examination of CHSE, Orissa or equivalent, with Physics, Chemistry & Biology (Botany and Zoology) with at least 50% marks in aggregate (Physics, Chemistry & Biology taken together) for general category candidates and 40% marks in aggregate for SC/ST candidates. For candidates seeking admission through JEE to Govt. and Private Colleges the candidate must be a permanent native of Orissa. They are to submit the Permanent nativity Certificate (Appendix-I) at the time of counselling. AGE: The lower age shall be 17 years as on December 31, 2011. The upper age shall be 25 years as on December 31, 2011. The upper age limit may be relaxed by three years for SC/ST candidates.” 12. The question which now falls for consideration is whether the State can prescribe eligibility criteria/qualifications in addition to those laid down by the MCI in its Regulations, for admission to MBBS Course. 13. In the case of Dr. Ambesh Kumar –vrs.– Principal, L.L.R.M. Medical College, Meerut, AIR 1987 SC 400, the Supreme Court considered the question whether the State can impose qualifications in addition to those laid down by the MCI and the Regulations framed by the Central Government. Hon’ble Court held that any additional or further qualification which the State may lay down would not be contrary to Entry 66 of List I since additional qualifications are not in conflict with the Central Regulations but designed to further the objective of the Central Regulations, which is to promote proper standards. The Hon’ble Court proceeded to observe as under : 5 “xx xx xx. The State Government by laying down the eligibility qualification, namely, the obtaining of certain minimum marks in the M.B.B.S. examination by the candidates has not in any way encroached upon the Regulations made under the Indian Medical Council Act nor does it infringe the central power provided in the Entry 66 of List I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification. xx xx xx” 14. As regards the scope of the Entries in the Constitution arising under Entry 66 of List I and Entry 25 of List III of the Seventh Schedule to the Constitution was examined in great detail by a Constitution Bench of the Supreme Court in Dr. Preeti Srivastava and Anr. –Vrs– State of M.P. and Ors, AIR 1999 SC 2894. After adverting to these two Entries in the Seventh Schedule, the Supreme Court held as under: “Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Governments. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education including, inter alia, medical and University education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List-III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List-I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications, in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education.” 15. In State of Tamil Nadu –Vrs– S.V.Bratheep, AIR 2004 SC 1861, the question for consideration was whether it was permissible for the State Government to prescribe higher qualifications for purposes of admission to the Engineering Colleges than what had been prescribed by the AICTE. The Supreme Court came to find that Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be 6 read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III, insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen is whether the prescriptions of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by the AICTE. Hon’ble Court taking note of its earlier decisions, observed as follows:- “xx xx xx. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges……Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastava’s case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education. Argument advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastava case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by AICTE they should be admitted even if they fall short of the criteria prescribed by the State.”[ 16. In the case of Visveswaraya Technological University & Anr. –Vrs– Krishnendu Haldar & Others, AIR 2011 S.C.1429, similar question again came up for consideration as to whether the State Government/ University could fix a eligibility criteria higher than those prescribed by the AICTE and whether the eligibility criteria for admission to Engineering courses stipulated under the Statutory Rules and Regulations of the State Government/University could be relaxed or ignored and the candidates who do not meet such eligibility criteria can be given admission on the ground that a large number of seats have remained unfilled in professional colleges, if such candidates possess the minimum eligibility criteria prescribed under the norms of AICTE. In the said case, the State of Karnataka had fixed higher eligibility criteria than those prescribed by the AICTE. The Hon’ble Court after referring to its various earlier decisions on the issue, has come to hold as under:- “The object of the State or University fixing eligibility criteria higher than those fixed by AICTE, is two fold. The first and foremost is to maintain excellence in higher education and ensure that there is no deterioration in the quality of candidates participating in professional Engineering courses. The second is to enable the State to shortlist the applicants for admission in an 7 effective manner, when there are more applicants than available seats. Once the power of the State and the Examining Body, to fix higher qualifications is recognized, the rules and regulations made by them prescribing qualifications higher than the minimum suggested by AICTE, will be binding and will be applicable in the respective State, unless the AICTE itself subsequently modifies its norms by increasing the eligibility criteria beyond those fixed by the University and the State. xx xx xx.” Hon’ble Court further held : “(i) While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by the Central Body/AICTE. The term ‘adversely affect the standards’ refers to lowering of the norms laid down by Central Body/AICTE. Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the Central Body/AICTE. (ii) xx xx xx. (iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/University would cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them, they will continue to apply inspite of the fact that there are vacancies or unfilled seats in any year. The main object of prescribing eligibility criteria is not to ensure that excellence in standards of higher education is maintained. (iv) The State/University (as also AICTE) should periodically (at such intervals as they deem fit) review the prescription of eligibility criteria for admissions, keeping in balance, the need to maintain excellence and high standard in higher education on the one hand, and the need to maintain a healthy ratio between the total number of seats available in the State and the number of students seeking admission on the other. If necessary, they may revise the eligibility criteria so as to continue excellence in education and at the same time being realistic about the attainable standards of marks in the qualifying examinations.” Hon’ble Court proceeded to observe as follows: “No student or college, in the teeth of the existing and prevalent rules of the State and the University