Hon’ble Mr. Justice R.C. Gandhi, Judge

Nazir Ahmad Lone Petitioner
versus
Sher-I-Kashmir Institution  of Medical Sciences and Others Respondents

SWP No. 253 / 2000, decided on 22.8.2000.

Constitution of India, Art. 16 - Petitioner challenged selection of respondent No. 4 for admission to D.M. Cardiology on various grounds including that selection has not been in accordance with the recommendations of the Medical Council of India - Held : selection for the said course has been made on the basis of the prospectus prescribed for the examination - Petition dismissed.

Advocates who appeared in this case :
Mr. S.R. Hussain, Advocate for the petitioner
Mr. A.M. Magray, Advocate for respondent No. 1 to 3 and Mr. A.H. Haqani, Advocate for respondent No. 4

Cases referred : Chronological
1. AIR 1978 Kerla 176
2. Aarti Gupta and others v. State of Punjab and others (1988) 1 SCC 258
3. Union of India v. N. Chandrasekharan and others (1998) 3 SCC 694
4. State of M.P. v. Kumari Nivediat Jain

Petitioner, Senior Resident Cardiology Department, Sheri Kashmir Institute of Medical Sciences, Soura, Srinagar, pursuant to the Notification No. EXAM / 26 of 1999 dt. 15-10-1999 issued by the respondent No. 3, inviting applications from the desirous candidates to seek selection and admission to undergo DM Cardiology course for the session 1999, applied to seek consideration for selection and admission to the said course. Petitioner alongwith other candidates was subjected to the selection process by the respondent No. 3, and having secured 12 marks, could not be selected. The respondent No. 4 who also secured 112 marks came to be selected vide notification No. EXAMS / 03 of 2000, dated 03-02-2000.

Aggrieved of the selection of the respondent No. 4 who has secured equal marks to that of the petitioner, has challenged the selection seeking to quash the notification dated 03-02-2000 and further seeks writ of Mandamus to select the petitioner also for undergoing DM Cardiology Course in Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar.

The respondents have filed the reply controverting the averments of the petition, justifying the selection of respondent No. 4.

Heard learned counsel for the parties and perused the record.

The selection of the respondent No. 4 has been challenged by the petitioner on two counts viz (i) that the petitioner having secured 112 marks should have been selected instead of respondent No. 4, as the petitioner is possessed of better merit and experience to that of the respondent No. 4, as per his bio-data and (ii) the selection of the respondent No. 4 is against the recommendation of the Medical Council of India, prescribed for selection of Post Graduate Students.

Learned counsel has laid much stress on the plea that while making selection, the selection authority has not adhered to the procedure prescribed for determining the academic merit and for that reliance has been placed on the extracted portion of the recommendations of the Medical Council of India, which reads thus :

"Selection of Postgraduate Students ;

For determining the academic merit, the University / Institution may adopt any one of the following procedure both for degree and diploma courses;

i) On the basis of merit as determined by a competitive test conducted by the University / Group of Universities.

ii) On the basis of merit as determined by a centralised Competitve test held at the National level.

iii) On the basis of their performance at the MBBS examinations provided they all come from the one University.

iv) Combination of (i) and (iii) if there is more than one University, there shall be combined test by these Universities."

Learned counsel for the petitioner has submitted that the respondent No.4 and the petitioner have not passed the MBBS course from the same University and placing reliance on para (iv) urged that there should have been a combined test by these Universities. It is also pointed out that the selection of respondent No. 4 on the ground that he has secured more marks in MBBS examination to that of the Petitioner, is bad, as the petitioner and the respondent No. 4 have not secured the MBBS degree from the same University. To make his point he has relied upon the Full Bench judgement of Kerala High Court reported in A.I.R. 1978, Kerala, 176.

Learned counsel for the respondents 1 to 3, Mr. Magray, in rabuttal has submitted that the petitioner has not challenged the selection of respondent No. 4, setting up a specific ground in the Writ petition that the selection of the respondent No. 4 is bad as it has been made ignoring the recommendation of the Medical Council of India.

Perusal of the averments of the writ petition supports the plea of Mr. Magray. Unless a specific ground is set out in the memorandum of the petition, providing an opportunity to the respondents to reply it effectively, the petitioner cannot be permitted to argue a ground which is not pleaded in the petition. This challenge to the selection of respondent No.4 therefore, is without substance.

However, the recommendation of the Medical Council of India is not of a binding or statutory character, as is evident while it provides that the University / Institution "may adopt any one of the following procedure." Unless this recommendation is adopted by the University, it cannot be made applicable automatically. The contention of the learned counsel for the petitioner that the recommendation of the Medical Council of India has its automatic effect and the respondent No.3 was bound to consider the candidates for selection to DM Cardiology course, strictly in accordance with the recommendations being of its binding nature and character, is not tenable. Recommendation of this nature is not binding and is only of recommendatory nature. This proposition of law has been set at rest by the Supreme Court while dealing with the similar proposition, in Aarti Gupta and others v. State of Punjab and others, 1988 (1) SCC, 258, holding that:

"The question as to whether the regulation of the Council is binding came for determination before a three Judge Bench of this Court. In the case of State of M. P. V. Kumari Nivediat Jain, the Court found that :

Regulation II of the Council is merely in the nature of a recommendation. Regulation II begins with the words "selection of students in a medical college should be based solely on merit". Language used inregulation II is deliberate and is intended to indicate the intention of the Council that it is only in the nature of a recommendation.

The court further went into the matter and observed that :

The authority of the council extends to the sphere of maintaining propermedical standards in medical qualifications. By virtue of this authority it may be open to the Council to lay down the minimum education qualifications required of a student who may seek admission into a medical college. In other words, the eligibility of a candidate who may sit to get admitted into a Medical College for obtaining recognised medical qualifications may be prescribed by the Council. All the candidates who are eligible for admission into Medical Colleges or institutions for getting themselves qualified as medical practitioners are entitled to seek admission into a Medical College or institution. As to how the selection has to be made out of the eligible candidates for admission into the medical college is a matter which has necessarily to depend on circumstances and conditions prevailing in particular States. Though the question of eligibility for admission into the medical curriculum may come within the power and jurisdiction of the Council, the question of selection of candidates out of the candidates eligible to the medical course does not appear to come within the purview of the counsel.

The view of a co-ordinate bench is binding upon us and we find it difficult to differ from what has been held in the aforesaid judgment. It is true that there is an observation of two Judge Bench in State of Kerala v. Kumari T. P. Roshana that the Regulations of Medical Counsel are binding but that observation made by Iyer, J. was in passing while in Nivediata case the matter directly fell for consideration. Dr. Singhvi also relied upon theobservations of Fazal Ali. J. in a three Judge Bench decision in Krishna Priya Ganguly v. University of Lucknow but here again it was an obiter ; at any rate reference to Nivediata Jain case was not made."

The learned counsel for the respondents has also countered the second submission of Mr. Hussain, urging that the selection of respondent No. 4 has been made strictly in accordance with the prospectus meant for the purpose, which envisages to deal with a situation, where two or more candidates secure equal marks in the examination, like the petitioner and the respondent No. 4. The relevant provision contained in the prospectus, and mentioned by the respondents in their objections, is extracted below :

"If two or more candidates obtain equal marks in the entrance examination then their inter-se-merit for selection shall be determined on the basis of following :

The candidate who has made more attempts in MD examination shall rank junior to a candidate who has made lesser or no attempt. If the attempts made for passing examination are also equal then a candidate who has obtained higher marks in the final MBBS examination shall rank senior to the candiates who has obtained lesser marks."

It is not denied that the respondent No. 4 has obtained higher marks to that of the petitioner in final MBBS examination. Learned counsel for the petitioner has sumbitted that since the petitioner and respondent No. 4 have not secured the MBBS degree from one University, therefore the above extracted provision contained in the prospectus for conduct of the examination notified by the Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar, cannot be made applicable in the case of the Petitioner. The petitioner after having participated in the selection process is not entitled to challenge the selection process or the selection of the respondent No. 4 unless it is maintained with the mala-fides or for want of jurisdiction. Learned counsel for the petitioner could not make out that the selection of the respondent No. 4 suffers for mala-fides, want of jurisdiction or on any other legal ground. The prospectus containing procedure for selection and determining the merit has been notified to the candidates, therefore, the petitioner after having participated in the selection process, is not entitled to challenge the selection, in view of the law laid down by the Supreme Court, Union of India v. N. Chandrasekharan and others, reported in 1998 (3) SCC, 694, holding that :

"It is not dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the departmental promotion committee. Therefore, they cannot turn around and contend latter when they found they were not selected, by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and that the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report."