ASHOK KUMAR MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The unsuccessful petitioner in the writ petition bearing W.P.(C) No. 18599 of 2011 being aggrieved by the order dated 1.11.2011 passed by the learned Single Judge declining to quash Clause 4.2 of OJEE, 2011 Brochure prescribing the upper age limit of 25 years for the entrance examination of 2011, which is the minimum eligibility criteria for admission to the first year MBBS who has secured 141 rank in medical stream and 36 rank as Green Card holder has filed this writ appeal urging various facts and legal contentions and prayed to set aside the impugned order by allowing the Writ Appeal and quash the Clause 4.2 in the Prospectus of OJEE, 2011.

(2.) The brief facts are stated for the purpose of appreciating the rival legal contentions urged on behalf of the parties with a view to find out as to whether the appellant has made out a case for interference with the impugned order of the learned Single Judge and issue a writ of certiorari to quash Clause no. 4.2 of the OJEE, 2011 Prospectus prescribing the upper age limit of 25 years for admission to the first year MBBS and as to whether refusal to quash the same amounts to failure to exercise judicial review power as it is in violation of Articles 14,21, and 21A of the Constitution of India. That amounts to substantial question of law that would arise for consideration of this Court ? What order ?

(3.) The date of birth of the appellant is 10th of May, 1984. Clause 4.2 of the Brochure of OJEE, 2011 prescribes the upper age limit as 25 years for admission to MBBS Course and accordingly he was issued admission card for appearing at the entrance examination conducted by the OJEE, 2011 which he did. He secured 141st rank in the general category and 36th rank in the Green Card holder category in the merit list. Learned Single Judge did not consider the fact that in the absence of prescription of the upper age limit in the regulation framed by the Medical Council of India in exercise of its power under Section 33 of the Indian Medical Council Act, 1956 and also in the Rules or Regulation under Section 4(1) of the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee)Act, 2007 prescribing the upper age limit by the OJEE in its prospectus is without authority of law and the various decisions of the Supreme Court upon which strong reliance is placed by the learned counsel Mr. Ashok Mohapatra, particularly the Constitution Bench decision in the case of Dr. Preeti Srivastava & Anr. Vs. State of M.P. & Ors., 1999 AIR(SC) 2894, Medical Council of India Vs. State of Karnataka, 1998 6 SCC 131, Sanatan Gauda V. Berhampur University & Ors., 1990 AIR(SC) 1075, Chowdhury Navin Hemabhai & Ors. Vs. State of Gujarat & Ors., 2011 AIR(SC) 1209, State of Kerala Vs. Kumari T.P. Roshana & Anr., 1979 1 SCC 572 and Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh & Ors., 2011 AIR(SC) 1974 in support of the proposition that regulation made under Statute have the force of law. Any action or order in breach of terms and conditions of Regulations is illegal and invalid. Learned Single Judge also did not consider the prospectus of various States in the country which did not prescribe the upper age limit as per the MCI guideline. There are different entrance examination for admission to MBBS course of AIIMS and other Universities and institutions conducting entrance examination for admission to MBBS course where there is no prescription of upper age limit except the minimum age limit of 17 years. In the prospectus for AIIMS MBBS Examination August, 2011 it is mentioned that candidates born on or after 2nd January, 1995 are not eligible to apply. The aforesaid relevant facts and legal contentions have not been examined in the proper perspective by the learned Single Judge with reference to the various judgments of the Apex Court upon which strong reliance is placed. Non consideration of the same rendered the impugned order bad in law. The clause 4.2 in the Prospectus is in violation of the provisions of Medical Council of India Act, regulations and the decisions referred to supra and fixing the upper age limit of a candidate in the prospectus by the OJEE in the State of Orissa for admission to the First year MBBS course, violates the principles of natural justice and the fundamental rights guaranteed under Articles 14, 21, 21-A of the Constitution of India. As the Medical Council of India which is the competent authority for regulating the admission of students in the MBBS Course has not prescribed the upper age limit in the Regulation and so also in the Orissa Act of 2007 and the Rules framed thereunder by the Orissa State Government. Therefore, the action of the OJEE is arbitrary and unreasonable, violative of fundamental rights referred to supra guaranteed to the appellant. Placing reliance upon the decision of the Supreme Court in the case of Dr. Ambesh Kumar Vs. Principal, L.L.R.M. Medical College, Meerut, 1987 AIR(SC) 400 and in the case of State of Tamil Nadu Vs. S. V. Bratheep, 2004 AIR(SC) 1861. The case of Ambesh Kumar arose from the notification issued by the State Government laying down the qualification regarding the eligibility of a candidate to be considered for admission to Post-Graduate Medical Courses in Uttar Pradesh and the Apex Court ruled that the State Government by laying down the eligibility qualification namely, obtaining of certain minimum marks in the MBBS examination by the candidate 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 Entry 66 of List-I of the Seventh Schedule of the Constitution. The same principle was followed in the case of State of Tamil Nadu Vs. S.V. Bratheep with reference to Entry No.25 of List III and Entry No.66 of List I of the VII Schedule have to be read together and it cannot be 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. Those decisions have been erroneously applied by the learned Single Judge to the fact situation against the appellant to deny the relief so also the decision upon which reliance is placed namely, Mahatma Gandhi University & Anr. Vs. Jikku Paul & Ors., 2011 4 Scale 578 is also not applicable to the fact situation. Therefore, Mr. Ashok Mohapatra, learned counsel for the Appelant submits that the decisions upon which he has placed reliance has not been considered by the learned Single Judge. Therefore, the impugned order is vitiated in law and hence the substantial question of law would arise in this appeal. The learned Single Judge has not noticed the factual aspects namely, the Medical Council of India Regulations framed in exercise of its statutory power under Section 33 of the MCI Act with approval of the Central Government has not fixed the upper age limit in the Regulations, so also the State Government has not framed the Rule after Section 4(1) of Orissa Act 2007 was enacted prescribing the further entry condition of eligibility of maximum age of a candidate in exercise of its power vested under Entry no.25 of the Concurrent List (List III) of the Constitution for admission of candidates to the MBBS course in the State of Orissa. Therefore the order of the learned Single Judge is vitiated in law and is liable to be set aside by allowing the appeal and granting the relief by issuing a writ of certiorari to quash Clause 4.2 of the Information Brochure of OJEE 2011 in prescribing the upper age limit of 25 years as the minimum eligibility criteria for admission of a candidate to first year MBBS course.