MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS.

A This Court has considered the expressions often employed by this Court while disposing of the special leave petition as “heard and dismissed”, “dismissed”, “dismissed as barred by time”. Maybe that at the admission stage itself, the opposite party appears on caveat or on notice and offers a contest to the maintainability of the petition. Such an order may be passed even ex parte i.e. in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non- speaking order where no reasons have been assigned and no law has been declared by this Court. This Court has ultimately concluded that if an order refusing to grant leave to appeal by a speaking order gives reasons for refusing the grant of leave, then the order has two implications; firstly the statement of law contained in the order is a declaration of law by this Court within the meaning of Article 141 of the Constitution; secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by this Court which would bind the parties thereto and also the court, tribunal or authority.

36Copy pinpoint36. When we read the order passed by this Court, all the parties have filed the pleadings while the order was passed by this Court. Counter affidavits, rejoinder and various other applications for taking on record the documents and plethora of documents were submitted before this Court and it was argued for several days at length. This Court has heard the matter and thereafter has expressed the opinion and recording finding E as to the legality of the order dated 14.11.2016 for the first time as the order was not before High Court, vide the order passed on 22.3.2017 observing that: “Heard learned counsel for the parties.

F We do not find any ground to interfere in Order dated 14.11.2016. As 30 students have been found by ASC, in the case of Karuna Medical College, who have been illegally deprived of their admission in spite of being meritorious, we deem it proper to issue direction to the college and all other concerned authorities to admit G them in the next academic session 2017-18 in Karuna Medical College and the corresponding number of seats, available to it, shall be reduced by 30 for the college in question for academic session 2017-18. The Special Leave Petitions are, accordingly, dismissed. H Pending applications stand disposed of.”

MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS. 257 [ARUN MISHRA, J.]

It is apparent from the aforesaid order passed by this Court that this Court did not find any ground to interfere with the order dated 14.11.2016. The SLPs. against the order passed by the High Court were also dismissed and this Court had directed that 30 students be admitted in the next session. Independent directions were issued which were not ordered by the High Court. This Court directed that they are to be admitted to the academic session 2017-18. Thus, it does not lie in the mouth of the respondents to contend at all that it was not a decision on merits by this Court. Submission is startling and in the negation of stupendous effort made and time given by this Court while hearing the matters before deciding them by the aforesaid order.

37Copy pinpoint37. It was also contended on behalf of the respondents that NEET C merit is the fulcrum that has been adopted in the Ordinance; a student who could have obtained admission otherwise, had the procedure been followed, should not be deprived of admission in the course for no fault on his part. The submission, though attractive, is hollow and cannot be countenanced for assessment. Firstly the matter stands adjudicated finally and finally concluded up to this Court. Merit was the basis earlier too when the admissions were to be made through NEET and required “on- line” procedure was to be followed. It is not the change of the basis that has been made by merit criteria. Apart from that, when once the basic procedure laid down in the judgment for receiving online applications had not been followed, admissions that were cancelled on that ground, could not have been validated at all. The colleges were unable to satisfy this Court as to the fairness of the procedure adopted by them. As such, this Court did not interfere with the judgment of the High Court as well as the order dated 14.11.2016 of the ASC. When merit was the basis earlier too, it cannot be said that the legislature has tried to introduce something new. It cannot be said that any defect has now been removed by the State legislature from the existing law. In fact, what was the judgment of the court, has been attempted to be nullified. It is nothing but an attempt to nullify the judgment which the legislature cannot do, as we have a well-defined field of separation of powers of the judiciary, legislature and the executive. G

38Copy pinpoint38. The decision in Dr. Preeti Srivastava & Anr. v. State of M.P. & Ors. (1999) 7 SCC 120 has been referred to by the respondents in which the Court considered the question of the need for common entrance examination for admission to postgraduate medical courses in a State H

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A and observed that common entrance examination provides unique criteria for judging the merits of all candidates who come from different universities. The common entrance test alone will balance the competing equities of having competent students for specialised education. This Court has made the following observations: B “28. This argument ignores the reasons underlying the need for a common entrance examination for post-graduate medical courses in a State. There may be several Universities in a State which conduct M.B.B.S. courses. The courses of study may not be uniform. The quality of teaching may not be uniform. The standard of assessment at the M.B.B.S. examination also may not be uniform in the different universities. With the result that in some of the better universities which apply more strict tests for evaluating the performance of students, a higher standard of performance is required for getting the passing marks in the M.B.B.S. examination. Similarly, a higher standard of performance may be required for getting higher marks than in other universities. Some universities may assess the students liberally with the result that the candidates with lesser knowledge may be above to secure passing marks in the M.B.B.S. examination; while it may also be easier for candidates to secure marks at the higher level. A common entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities. Obviously, as soon as one concedes that there can be differing standards of teaching and evaluation in different universities, one cannot rule out the possibility that the candidates who have passed the M.B.B.S. examination from a university which is liberal in evaluating its students, would not, necessarily, have passed, had they appeared in an examination where a more strict evaluation is made. Similarly, candidates who have obtained very high marks in the M.B.B.S. examination where evaluation is liberal would have got lesser marks had they appeared for the examination of a university where stricter standards were applied. Therefore, the purpose of such a common entrance examination is not merely to grade candidates for selection. The purposes is also to evaluate all candidates by a common yardstick. One must, therefore, also take into account the possibility that some of the candidates who may have passed the M.B.B.S. examination from more “generous” H

MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS. 259 [ARUN MISHRA, J.]

universities, may not qualify at the entrance examination where a A better and uniform standard for judging all the candidates from different universities is applied. In the interest of selecting suitable candidates for specialised education, it is necessary that the common entrance examination is of a certain standard and qualifying marks are prescribed for passing that examination. This B alone will balance the competing equities of having competent students for specialised education and the need to provide for some room for the backward even at the stage of specialised postgraduate education which is one step below the super specialities.” The observations are of no help for the aforestated reasons. The C State Government was not competent to promulgate the impugned Ordinance as already held. The question cannot be agitated afresh who could have obtained admission on the basis of the merit. There may be a large number of other students who might have been deprived of their right to obtain admission. Such kind of enquiry is impermissible to be made now in the wake of the decisions which have attained finality and are binding upon all concerned.

39Copy pinpoint39. Reliance has been placed by the respondents on a decision of this Court in Anitta Job & Ors. v. The State of Kerala decided on 20.4.2018 (supra) so as to contend that this Court did not interfere with the admissions which were made without applying the mind as the students had appeared in the NEET examination and the college had admitted other similar students also. This Court has passed the order under Article

142. In the instant case in view of the previous verdicts, such a power cannot be exercised and apart from that when the judgments have attained finality, they are binding on all concerned including this Court. Power F under Article 142 cannot be exercised to nullify its own judgment and to perpetuate illegality. The question involved in the case is the power of the State Government to promulgate the impugned Ordinance. It was not the question in the said decision of Anitta Job (supra). The decision is of no application to the instant case. The power under Article 142 G cannot at all be exercised by this Court in view of the previous decisions and also in view of the fact that it was not competent to enact the impugned Ordinance by the State Government so as to perpetuate an illegality in view of the pronouncements made earlier.

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40Copy pinpoint40. Resultantly, the writ petitions deserve to be allowed. The impugned Ordinance is declared to be ultra vires and entrenching upon the field earmarked for the judiciary as it sought to nullify the judgment and order passed by the High Court and by this Court.

B Kalpana K. Tripathy Writ Petitions allowed.