Divya P.V. and others v. Kerala University of Health Sciences and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **WEDNESDAY, THE 13TH DAY OF AUGUST 2014/22ND SRAVANA, 1936** ## **WP(C).No. 16968 of 2014 (U)** **----------------------------** ## **PETITIONER(S) :** **--------------------------** **1. DIVYA P.V., D/O. P.V. BALAKRISHNAN AGED 22 YEARS, PARAMBAN VEETTIL NEDIYANGA P.O., SREEKANDAPURAM VIA., KANNUR DISTRICT, PIN - 670 631.** **2. ATHIRA K.P., D/O. DAMODARAN, AGED 21 YEARS VISHNUKRIPA, ORKKATTERI P.O., VATAKARA VIA, KOZHIKODE DISTRICT PIN - 673 501.** **3. SAFEEDA M.K., D/O. KUNHAMMED, AGED 21 YEARS MEETHALAY KAVUNGIL HOUSE KAYAPPANACHI P.O., THUNERI VIA., KOZHIKODE DISTRICT, PIN - 673 501.** **4. JIJILA JAYARAJAN D/O. JAYARAJAN, AGED 22 YEARS “JANITHAKAM”, THIRUVANGAD P.O., KANNUR DISTRICT, PIN - 670 103.** **5. DONA BABU D/O. K.J. BABU, AGED 21 YEARS KANDATHIL PAPPANAMCHIRA HOUSE ATHIRAMPUZHA P.O., 101 JUNCTION ETTUMANOOR, KOTTAYAM DISTRICT PIN - 686 562.** **6. RAMIYATH V.V., D/O. ABDUL RAHIM, AGED 22 YEARS VANIYAM VEETTIL, EDACHERI P.O., VATAKARA VIA., CALICUT - 673 502.** **7. VANDITHA K.S., D/O. M. SURESH BABU, AGED 22 YEARS KEYATH HOUSE, KAKKODI VIA., KIZHAKKUMMURI P.O., KOZHIKODE DISTRICT, PIN - 673 611.** **...2/-** **WP(C).No. 16968 of 2014 (U) -2-** **8. SHAIK AFIYA BANU, D/O. SRI. SHAIK ADAM SAHIB AGED 21 YEARS, HASSAN MANZIL KUNDAMKUZHY, P.O. KUNDAMKUZHY KASARAGODE, PIN - 671 541.** **9. NIHAL K., D/O. SRI. K. MOHAMMED SHAFEEQU AGED 22 YEARS, “ACHUS' HOUSE OPPOSITE R.M. HOSPITAL ROAD BEYPORE P.O., KOZHIKODE DISTRICT-673 015.** **10. RUBEENA MUHAMMED M., D/O. SRI. MOHAMMED MOHIADHEEN T., AGED 22 YEARS, RAHMA NIVAS NEAR PJHS, ETTAMMEL, P.O. MADAYI KANNUR DISTRICT, PIN - 670 304.** **BY SENIOR ADVOCATE SRI.O.V.RADHAKRISHNAN BY ADVS.SRI.M.P.PRAKASH SRI.K.M.AUGUSTINE** **RESPONDENT(S) :** **----------------------------** **1. KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., TRISSUR, PIN - 680 596.** **2. DENTAL COUNCIL OF INDIA REPRESENTED BY THE SECRETARY AIWAN-E-GALIB MARG, KOTLA ROAD NEW DELHI -110 002.** **3. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN - 695 001.** **4. PARIYARAM DENTAL COLLEGE REPRESENTED BY ITS PRINCIPAL PARIYARAM MEDICAL COLLEGE P.O., PARIYARAM, KANNUR, PIN - 670 503.** **5. KANNUR DENTAL COLLEGE REPRESENTED BY ITS PRINCIPAL, ANJARAKKANDY P.O., KANNUR DISTRICT PIN - 670 612.** **...3/-** **WP(C).No. 16968 of 2014 (U) -3-** ## **6. CENTURY INTERNATIONAL INSTITUTE OF DENTAL SCIENCES AND RESEARCH CENTRE, KASARAGODE, REPRESENTED BY ITS PRINCIPAL THEKKIL BRIDGE, POINACHI P.O., KASARAGODE, PIN - 671 541.** **R1 BY ADV. SRI.P.SREEKUMAR, SC R2 BY ADV. SRI.TITUS MANI VETTOM, SC R3 BY GOVT. PLEADER SRI. R. RANJITH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **...4/-** ## **WP(C).No. 16968 of 2014 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 1ST PETITIONER.** **EXT.P2 PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 2ND PETITIONER. EXT.P3 PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 3RD PETITIONER.** **EXT.P4 PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 4TH PETITIONER.** **EXT.P5 PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 5TH PETITIONER.** **EXT.P6 PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 6TH PETITIONER.** **EXT.P7 PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 7TH PETITIONER.** **EXT.P8 PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 8TH PETITIONER.** **EXT.P9 PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 9TH PETITIONER.** **EXT.P10 PHOTOCOPY OF THE EXAMINATION RESULT OF THE 2ND YEAR BDS DEGREE SUPPLEMENTARY EXAMINATION OF THE 10TH PETITIONER.** **EXT.P11 TRUE EXTRACT COPY OF THE REVISED REGULATIONS OF THE RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, KARNATAKA.** **(Contd..)** **WP(C).No. 16968 of 2014 (U)** **EXT.P12 TRUE EXTRACT COPY OF THE ORDINANCE ISSUED BY THE DELHI UNIVERSITY.** **EXT.P13 TRUE EXTRACT COPY OF THE RULES/REGULATIONS ISSUED BY THE ANUSANDHAN UNIVERSITY, BHUVANESWAR.** **EXT.P14 TRUE EXTRACT COPY OF THE RULES/REGULATIONS ISSUED BY THE IST RESPONDENT UNIVERSITY.** **EXT.P15 COPY OF THE CORRIGENDUM NOTIFICATION DATED 21.5.2013 OF THE 1ST RESPONDENT UNIVERSITY.** **EXT.P16 COPY OF THE REVISED BDS REGULATIONS, 2007 ISSUED BY THE 2ND RESPONDENT.** **EXT.P17 COPY OF THE AMENDMENT REGULATIONS ISSUED BY THE 2ND RESPONDENT.** **EXT.P18 TRUE EXTRACT COPY OF THE RULES/REGULATIONS OF MBBS COURSE ISSUED BY THE IST RESPONDENT UNIVERSITY.** **EXT.P19 TRUE EXTRACT COPY OF THE RULES/REGULATIONS OF BAMS COURSE ISSUED BY THE IST RESPONDENT UNIVERSITY.** **EXT.P20 TRUE EXTRACT COPY OF THE RULES/REGULATIONS OF BHMS COURSE ISSUED BY THE IST RESPONDENT UNIVERSITY.** **EXT.P21 TRUE EXTRACT COPY OF THE RULES/REGULATIONS OF B.PHARM COURSE ISSUED BY THE IST RESPONDENT UNIVERSITY.** **EXT.P22 TRUE EXTRACT COPY OF THE RULES/REGULATIONS OF B.SC NURSING COURSE ISSUED BY THE IST RESPONDENT UNIVERSITY.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **'CR'** ## K. SURENDRA MOHAN,J. ------------------------------W.P(C) NO.16968 OF 2014 ---------------------------------Dated this the 13[th] August, 2014. ## JUDGMENT The petitioners are all students of different Dental Colleges pursuing their studies in the degree course of Bachelor of Dental Surgery ('BDS' for short). They are persons who have failed to clear all the subjects of the II Year BDS. They had appeared for the supplementary examinations of the second year also and have failed. Some of the petitioners had joined the course in the year 2010. Others have joined the course in the year 2011. They could pass their I Year examinations only in their supplementary examinations. For such persons who qualify only through the supplementary examinations, a supplementary batch is formed by the different colleges. They all are in the supplementary batch. WPC 16968/2014 2 2. The third year BDS classes have commenced on 11.6.2014. However, the petitioners have not been permitted to attend the III year BDS classes for the reason the they have not passed all the subjects of their II year BDS examinations. As per the Regulations of the University, they would be permitted to attend the III year BDS classes only after they pass in all the papers of the II year BDS. According to the petitioners, they are ready to appear for the supplementary examinations that are scheduled to be held during the course of the academic year 2014-2015. Even if they clear all the papers of the II year BDS examinations, they would not be in a position to appear for the III year BDS examinations during the current academic year if they are prevented from attending the classes of the III year BDS for the reason that they would not be able to secure 75% attendance, which is necessary to be eligible to appear for the examination. If they are not able to appear for the III year examinations during the current year, they would lose one more year, it is pointed out. Such a WPC 16968/2014 3 consequence would be unjust and would prejudicially affect the future prospects of the petitioners, it is contended. Therefore, they seek the issue of appropriate directions permitting them to attend the III year BDS classes. They also challenge the Regulations of the University and contend that the Regulations in so far as they prevent students who have not passed in all the subjects of the II year BDS from attending the III year classes, are arbitrary, unsustainable and liable to be set aside. 3. According to the learned Senior Counsel Shri. O.V.Radhakrishnan, who appears for the petitioners the Dentists Act, 1948 (hereinafter referred to as the 'Act for short) is a Central enactment that provides for the regulation of the profession of dentistry, as well as the courses of study that would enable a person to acquire the qualifications necessary for practise of the profession of dentistry. For the purpose of regulating the profession and the courses of study, the Act has constituted the Dental Council of India. WPC 16968/2014 4 Section 20 of the Act confers power on the Dental Council of India to frame regulations and to prescribe inter alia, the standard curriculum for the training of dentists and dental hygiene and the conditions for admission to such courses of study. The Section also confers power on the Dental Council to prescribe the standards of examinations and other requirements to be satisfied for acquiring the qualifications and for obtaining recognition under the Act. According to the learned Senior Counsel, Ext.P16 is the Regulations for the Degree of Bachelor of Dental Surgery (BDS). As per the Regulations, it is contended that, any candidate who fails in one subject in an examination is permitted to go to the next higher class, subject to the condition that he should appear for the subject and complete it successfully before he appears for the next higher examination. Therefore, a failed candidate need only clear the subject in which he has failed before he appears for the next higher examination, according to the Senior Counsel. Ext.P16 Regulations have been issued WPC 16968/2014 5 under the Dentists Act, a law enacted by the Union Parliament. Under Entry 66 of List I the State has no power to enact a law that is repugnant to any provision of the said enactment or the Regulations made under it. Therefore, according to the learned Senior Counsel, the Regulations framed by the first respondent Univeristy, evidenced herein by Ext.P14 as well as the Corrigendum Ext.P15 have to yield to the stipulations contained in Ext.P16 regulations framed under the Central Enactment. Consequently, the petitioners are entitled to pursue their studies by attending the classes of the III year BDS course, subject of course to the rider that they should clear all the subjects of the II year BDS before they could be permitted to appear for their III year BDS examinations. Various decisions of the Hon'ble Supreme Court are also pressed into service, to drive home the contention that the Regulations framed under Section 20 of the Central Legislation would override the stipulations contained in Exts.P14 and P15. In view of the repugnancy WPC 16968/2014 6 with Ext.P16 Regulations, it is contended that Exts.P14 and P15 to the extent they are inconsistent with Ext.P16, are liable to be set aside. 4. A statement has been filed by the counsel for the first respondent refuting the contentions of the petitioners in the writ petition. According to the first respondent, the Dental Council of India prescribes only the broad parameters that are necessary to be complied with while conducting a BDS Course. The details of the course of study as well as the conduct of the course are all left to be determined by the respective Universities that conduct the course. According to Adv.P.Sreekumar who appears for the Unniversity, during the first two years of the BDS Course, the students are taught the basic theory subjects in which a thorough knowledge is necessary before they could embark upon any further study. During the III year the students have to attend clinical study apart from the theory. They are also permitted to treat patients under the strict supervision of their teachers, for WPC 16968/2014 7 which a thorough knowledge of the theoretical aspects is absolutely necessary. It is for the said reason that, students who have not passed all the subjects in the II year are not permitted to attend the III year classes. However, a student who does not pass any of the subjects of his I year examinations is permitted to attend the II year classes. Therefore a student would get the first two years to clear all the papers of the I and II year. With reference to the contention of the petitioners that in various other Universities students are permitted to attend the III year classes even in cases where they fail in one of the subjects of the II year examinations, it is contended that the system followed in each University is different. Exts.P11 to P13 would show that even the duration of the course is different as far as the first respondent is concerned. The Dental Council only sets a Bench Mark. It is permissible for each University to make necessary changes to suit the requirements of the course that is offered. The scheme of examinations, the manner of WPC 16968/2014 8 evaluation of the necessary papers etc. are all matters within the exclusive domain of each University. Therefore, it is contended that, Exts.P14 and P15 are perfectly valid and legal. The learned counsel for the University also places reliance on the decisions of the Hon'ble Supreme Court in Visveswaraiah Technological University & Another v. Krishnendu Halder and others {(2011) 4 SCC 606} as well as the decision of a Division Bench of this Court in Ashar v. Kerala University of Health Sciences {2014(1) KLT 969} to contend that, prescription of higher standards by the University is permissible. 5. Adv. Titus Mani Vettom appears for the second respondent Dental Council of India. According to the counsel, the second respondent only stipulates a minimum standard that has to be strictly adhered to by the various Universities. However, each University is at liberty to insist on higher standards for the purpose of maintaining excellence in education. As long as the minimum standards are WPC 16968/2014 9 maintained, the second respondent has no objection in higher standards being insisted upon. Therefore, there is no repugnancy with the regulations framed by the Dental Council, where higher standards are insisted upon. 6. This writ petition is not admitted. Since it was represented that the matter is urgent, where the future of the students are at stake, the University was granted time to file a statement. Elaborate arguments have been addressed by the learned counsel appearing for the contesting parties. It is agreed by all that the writ petition itself could be disposed of finally. Therefore, I have heard the matter and have considered the contentions advanced before me anxiously. 7. It is true that the Act regulates the profession of dentistry. For the purpose of regulation of the profession, the second respondent Dental Council of India has been constituted under the provisions of the Act. Ext. P16 is a copy of the Regulations framed under the Act which regulates inter alia, the conduct of the BDS course also. The WPC 16968/2014 10 contention that requires to be considered is whether the provisions of Ext.P16 would invalidate the provisions of the University Regulations, Exts.P14 and P15 in so far as they are in conflict with the former. The question as to whether there is any repugnancy at all, requires to be considered. 8. Entry 25 of List III of the Constitution of India reads as follows:- “Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64,65 and 66 of List I; vocational and technical training of labour.” The above entry expressly stipulates that, the power available under the above entry shall be subject to the powers under Entries 63, 64, 65 & 66 of List I. Thereore, there cannot be any doubt that a law enacted by the Union Parliament under any one of the said entries would have precedence over any State law made under Entry 25 list III. 9. The Dentists Act, 1948 would therefore enjoy precedence over any State law made in exercise of the power under the above entry. The law made by the Parliament WPC 16968/2014 11 would prevail also in view of Article 254 (1) of the Constitution. Therefore, in the event of any repugnancy, there need not be any doubt that, the provisions of Dentists Act, 1948 would prevail. 10. Section 20 the Act confers the power to make regulations. Section 20 in so far as it is relevant for our purposes is extracted hereunder:- “20. Power to make regulations:---(1) The Council may, with the approval of the Central Government, make regulations not inconsistent with the provisions of this Act to carry out the purposes of this Chapter. (2) In particular and without prejudice to the generality of the foregoing power such regulations may--- **==> picture [256 x 11] intentionally omitted <==** (g) prescribe the standard curricula for the training of dentists and dental hygienists, and the conditions for admission to courses of such training; (h) prescribe the standards of examinations and other requirements to be satisfied to secure WPC 16968/2014 12 for the qualifications recognition under this Act; (i) any other matter which is to be or may be prescribed under this Act; Provided that regulations under clauses (g) and (h) shall be made after consultation with Governments.” The above provision confers power on the Dental Council of India to prescribe standards not only for the curriculam of training for dentists but also to prescribe standards for examinations. It is in exercise of the said power that the second respondent has framed Ext.P16 regulations. Ext.P16 deals with the scheme of examinations. The relevant portion thereof is reproduced hereunder for convenience of reference:- ## “SCHEME OF EXAMINATION: The scheme of examination for BDS Course shall be divided into 1[st] B.D.S. examination at the end of the first academic year, 2[nd] BDS examination at the end of second year, 3[rd] BDS examination at the end of third, 4[th] BDS at the end of 4[th] and final BDS at the WPC 16968/2014 13 end of 5[th] year. (1) Universities shall organize admission timings and admission process in such a way that teaching starts from 1[st] day of August in each academic year. I. BDS Examination:- 1. General anatomy including embryology and histology 2 General human physiology and biochemistry 3. Dental Anatomy, Embryology and Oral Histology Any student who does not clear the first BDS University Examination in all subjects within 3 years from the date of admission, shall be discharged from the Course. Any candidate who fails in one subject in an Examination is permitted to go to the next higher class and appear for the subject and complete it successfully before he is permitted to appear for the next higher examination. II BDS Examination A candidate who has not successfully completed the 1[st] BDS examination cannot WPC 16968/2014 14 appear in the II year Examination 1. General pathology and Microbiology 2. General and dental pharmacology and therapeutics 3. Dental Materials 4. Pre Clinical Conservative – only practical and Viva Voce 5. Pre Clinical Prosthodontics – only Practical and Viva Voce III BDS Examination: A candidate who has successfully completed the 2[nd] BDS examination can appear III BDS Examination 1. General Medicine 2. General Surgery 3. Oral Pathology and Oral Microbiology” 11. What is important to be taken note of from the scheme extracted above is that, after the subjects of I BDS examinations are listed, it is stipulated that, any student who does not clear the I BDS University examinations in all subjects “within three years from the date of admission shall be discharged from the course.” Therefore, it is mandatory that WPC 16968/2014 15 a student should pass in all the subjects of I BDS within an outer limit of three years of the date of admission. There is a further stipulation, which states that a candidate who fails in one subject in an examination is permitted to go to the next higher class and appear for the subject and complete it successfully before he is permitted to appear for the next higher examination. According to learned Senior Counsel Shri. O.V.Radhakrishnan, the above stipulation makes it abundantly clear that every student is permitted to go to the next higher class subject to the only condition that he would not be permitted to appear for the next higher examination unless he obtains a pass in the failed subject. Therefore, it is contended that the petitioners are entitled to attend the III year BDS classes taking the benefit of the above provision. The standing counsel for the first respondent on the other hand contends that the stipulations referred to above apply only to the I year BDS examination. A perusal of the Regulations shows that the contention of the counsel for the WPC 16968/2014 16 first respondent is right. 12. It is worth noticing from what is extracted above that, there are various stipulations made in the case of each of the examinations. In the case of I year BDS examination, as already noticed above, it is stipulated that a candidate has to clear his I year subjects within three years of the date of his admission. The further stipulation that a candidate who fails in one subject in an examination is permitted to go to the next higher class follows the above clause. The same is part of the section dealing with the I year BDS examination. In the case of II BDS Examination what is stipulated is that a candidate who has not successfully completed the I BDS examination cannot appear for the II BDS examination. In the case of the III BDS examination also, a stipulation on the same terms appear. Had it been the intention that a candidate would be permitted to go to the next higher class even where he fails in one of the subjects in the lower class, the stipulation would have found a place after the details WPC 16968/2014 17 regarding the V BDS Examination. It could also have been placed before the sections dealing with the individual examinations. The fact that the said stipulation has been made part of the conditions attached to the I BDS examination leads to the irresistible conclusion that the same is intended to apply only to the I BDS examination. For the above reason, the contention of the petitioners that, by virtue of the stipulation in Ext.P16 they are entitled to attend the classes of the III year BDS course is rejected. 13. The next contention of the counsel for the petitioners is founded on the premise that Ext.P16 permits them to attend the III year BDS classes. Ext.P14 regulations framed by the first respondent University makes the following stipulations:- “k) Allowed to Keep Terms (A.T.K.T)” A candidate who fails in one subject in an examination, except in the second year, is permitted to go to the next higher class. But he/she has to pass that failed subject in order to WPC 16968/2014 18 be eligible to appear for the examination of the next higher class. Since clinical study in the third year involves treatment on patients under the guidance of faculty it is mandatory that the candidate should clear all the subjects of Second year including preclinical practical examinations before he can be promoted to third year. A student will be eligible to appear for Final Year Part II examination only if he/she has appeared for final year part I examination. He/she can appear for the failed subjects (if any in part I) along with the final year part II examination.” (Emphasis supplied) The above provision puts a restriction on the right of a student to attend the III year classes by providing that a student who does not clear all the subjects of the II year would not be allowed to attend the higher classes. The above provision has been modified by issuing Ext.P15 Corrigendum, the relevant portion of which is extracted hereunder for convenience of reference:- WPC 16968/2014 19 ## CORRIGENDUM “The Faculty of Dental Science in its meeting dated 5.3.13 has resolved to modify clause 10(j) of the regulations of BDS Course as follows i) In clause10(j) of the regulations of BDS it is mentioned that a candidate who fails in one subject in an examination, except in the second year, is permitted to go to the next higher class. But he/she has to pass that failed subject in order to be eligible to appear for the examination of the next higher class. Since clinical study in the third year involves treatment on patients under the guidance of faculty it is mandatory that the candidate should clear all the subjects of Second year including preclinical practical examinations before he can be promoted to third year....is modified as ii Students failing in any one of the Pre clinical practical subjects (Pre Clinical Conservative Dentistry, Pre Clinical Prosthodontics and Crown and Bridge, Pre Clinical Orthodontics may be allowed to carry WPC 16968/2014 20 over the failed subject. Such students may be promoted to the third year BDS course, but their clinical posting in the failed subject will be withheld until they pass the preclinical subject in the supplementary examination. Moreover such students can appear for the third BDS examination only after passing the failed practical examination. There shall be no carry over for General Pathology and Microbiology, General and Dental Pharmacology and Therapeutics and Dental Materials.” By virtue of the above regulations, the first respondent has prohibited students who have not cleared all their papers of the II BDS examination from attending the III BDS classes. It is pointed out that, the above stipulation runs counter to the stipulations in Ext.P16 regulations. Therefore, it is contended that Exts.P14 and P15 to extent they are inconsistent with Ext.P16 are liable to be set aside. 14. The learned Senior Counsel Shri.O.V.Radhakrishnan places reliance on the decision in Medical Council of India v. State of Karnataka and others {(1998) 6 SCC 131}. That was WPC 16968/2014 21 a case in which, the power of the Medical Council of India to fix the intake for admission of students to the various medical colleges in the State of Karnataka was under challenge. The case related to admission to the MBBS course. Placing reliance on an earlier decision it has been held in the said case that, where there is a Central enactment with respect to coordination and determination of standards, that would prevail over a State law by virtue of first part of Article 254(1). With respect to regulations framed by the Medical Council under the Medical Council Act it has been held that it would have mandatory force. It has been clarified in paragraph 31 of the said judgment that, what has been stated in the said judgment about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act. 15. The decision of the Apex Court in Jaya Gokul Educational Trust v. Commissioner & Secretary to Government Higher Education Department {(2000) 5 SCC WPC 16968/2014 22 231} is relied upon to contend that any State law that is repugnant to a Central enactment made in exercise of the power under Entry 66 of List I of the Constitution would be invalid to the extent of such repugnancy. The question in the said case related to the power of the All India Council for Technical Education (AICTE) under the All India Council for Technical Education Act, 1987. 16. In the decision of Bharati Vidyapeeth (Deemed University) v. State of Maharashtra {(2004) 11 SCC 755} the Hon'ble Supreme Court has considered the scope of the power under Entry 66 List I vis-a-vis Entry 25 List III. It has been explained that the expression “Coordination” used in Entry 66 List I is not confined to mean mere “evaluation.” It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for the removal of disparities in standards but also for preventing the occurrence of such disparities. It will include all action WPC 16968/2014 23 intended to formulate a uniform pattern for a concerted action in accordance with a certain design, scheme or plan of development. It will include the power to do all things, which are necessary to prevent what would make “coordination” either impossible or difficult. This power is absolute and unconditional and in the absence of any valid or compelling reasons it must be given its full effect according to its plain and express intention. It has been further held as follows in paragraph 20 of the said decision:- “At this stage we must strike a note of caution in regard to institutions which are exclusively owned by the Government and in respect of institutions which stand affiliated to the university or in respect of institutions to which either affiliation or grant is made. Such institutions may be controlled to an extent by the State in regard to admission as a condition of affiliation or grant or owner of the institutions. But those conditions, again if they are in respect of the institutions of higher education must apply WPC 16968/2014 24 the standard prescribed by the statutory authorities such as UGC, Medical Council, Dental Council, AICTE, governed by Entry 66 of List I of the Constitution.” It is therefore clear from the above decision that, the regulations framed by the Central Controlling Agency is binding on the Universities as well as the Colleges that offer the various professional courses that are so controlled. However, the question still remains, whether the standards so fixed are to be scrupulously adhered to, without any change whatsoever. It has been held by the Hon'ble Supreme Court, the standards stipulated by the central agencies like the Indian Medical Council as well as the Dental Council are only the minimum standards that are necessary to be maintained at any cost. However, in order to achieve excellence in education it has been held that it is permissible to insist on higher standards. 17. A Constitution Bench of the Hon'ble Supreme Court has considered the question in Dr.Preeti Srivastava and WPC 16968/2014 25 Another v. State of Madhya Pradesh and others {(1999) 7 SCC 120}. After considering the directions issued by the Indian Medical Council under the provisions of the Indian Medical Council Act, 1956 the issue regarding the binding nature of the regulations issued has been concluded by the Hon'ble Supreme Court in the following words:- “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 Indian Medical Council. For example, the medical qualifications granted by a university or a medical institution have to be recognised under the Indian Medical Council Act, 1956. Unless the qualifications are so recognised, the students who qualify will not be able to practise. Before granting such recognition, a power is given to the Medical Council under Section 16 to ask for information as to the courses of study and examinations. The universities are bound to furnish the information so required by the Council. The postgraduate Medical Committee is also under Secion 17, WPC 16968/2014 26 entitled to appoint Medical Inspectors to inspect any medical institution, college, hospital or other institution where medical education is given or to attend any examination held by any university or medical institution before recommending the medical qualification granted by that university or medical institution. Under Section 19, if a report of the committee is unsatisfactory the Medical Council may withdraw recognition granted to a medical qualification of any medical institution or university concerned in the manner provided in Section 19. Section 19-A enables the Council to prescribe minimum standards of medical education required for granting recognised medical qualifications other than postgraduate medical qualifications by the universities or medical institutions, while Section 20 gives a power to the Council to prescribe minimum standards of postgraduate medical education. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act.” 18. The question as to whether the minimum eligibility WPC 16968/2014 27 criteria could be relaxed for the purpose of filling up unfilled seats in a particular year came up for consideration before the Hon'ble Supreme Court in Visveswaraiah Technological University v. Krishnendu Halder {(2011)4 SCC 606}. Relying on the decision in Dr. Preeti Srivastava v. State of M.P. (supra) the Apex Court has while summarising the position emerging from the dicta in the various decisions on the point held in paragraph 14 as follows:- “The respondents (colleges and the students) submitted that in that particular year (2007-2008) nearly 5000 engineering seats remained unfilled. They contended that whenever a large number of seats remained unfilled, on account of non- availability of adequate candidates, paras 41(v) and (vi) of Adhiyaman would come into play and automatically the lower minimum standards prescribed by AICTE alone would apply. This contention is liable to be rejected in view of the principles laid down in the Constitution Bench decision in Dr. Preeti Srivastava and the decision of the larger Bench in S.V. Bratheep which explains WPC 16968/2014 28 the observations in Adhiyaman in the correct perspective. We summarise below the position, emerging from these decisions : (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) The observation in para 41(vi) of Adhiyaman to the effect that where seats remain unfilled, the State authorities cannot deny admission to any student satisfying the minimum standards laid down by AICTE, even though he is not qualified according to its standards, is not good law. (iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the WPC 16968/2014 29 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 in spite 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 all seats in colleges are filled, but 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.” WPC 16968/2014 30 19. A similar question had come up for the consideration of a Division Bench of this Court where the action of the first respondent University in prescribing a separate minimum marks of 50% in theory papers alone apart from the total prescribed combined minimum marks of theory and practical examination was challenged. After considering the issue this Court has in Ashar v. Kerala Univeristy of Health Sciences {2014(1) KLT 969} held that the University had the power to prescribe the higher qualification. The Division Bench has held as follows in paragraph 18 of the said decision:- “We must notice in this regard that as contended by the learned counsel for the Medical Council of India the standard fixed by the Medical Council purports to be the minimum standard. Therefore, nothing prevents the University from prescribing higher standards. The question of fixing higher standard may have arisen in the context of cases which related to admission of WPC 16968/2014 31 students. We are of the clear view that the principle of the decision is the presence of power of the State or University traceable to Entry 25 of the List III of the Seventh Schedule. Therefore, the prescription of higher standard cannot be limited to the stage of admission. Once power of prescribing higher standard is ceded to the State or University, the higher standard can be prescribed even at the stage of examinations and in relation to the same.” 20. The position that emerges from the dicta in the decisions referred to above is that, the central professional regulatory bodies like the second respondent prescribe only the minimum standards that are to be scrupulously adhered to. The Union Parliament being sufficiently empowered under Entry 66 List I of the Constitution, the Central enactment prescribing such standards, as well as the regulations framed under such enactment would prevail over any enactment or regulations framed thereunder in exercise of the power under Entry 25 List III, in cases of repugnancy. However, since the WPC 16968/2014 32 central regulatory body like the second respondent frames only the minimum standards, it is open to the State Government as well as the Universities to frame regulations prescribing higher standards of excellence. Prescription of such higher standards cannot be said to constitute repugnancy with the regulations framed under the Central enactment. Therefore, any attack on a regulation framed under a State enactment would have to fail where it is found that what are prescribed are higher standards. In the present case the stipulations contained in Exts.P14 and P15 are higher standards since they stipulate that only a student who has passed in all the subjects of the II BDS examinations shall be allowed to attend the classes of the III year BDS. The said stipulation is insisted upon with the object of ensuring that students who are permitted to attend on patients and to treat them, under the supervision of their teachers, are persons who have acquired proficiency in all the theory subjects by obtaining pass marks in the II BDS Examinations. The said WPC 16968/2014 33 stipulations are not in conflict with the regulations framed by the Dental Council of India, Ext.P16. In view of the fact that prescription of a higher standard does not constitute repugnancy, the challenge against Exts.P14 and P15 has to fail. For the above reasons, I do not find any grounds to entertain this writ petition or to grant any of the reliefs sought for. The writ petition fails and is accordingly dismissed. Sd/K. SURENDRA MOHAN Judge jj /True copy/ WPC 16968/2014 34