PANKAJ KUMAR LAHKAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution, the petitioners who are all MBBS having completed their inturnship, seek to challenge the Assam Medical Colleges (Regulation of Admission to the Post Graduate Courses) Rules, 1997 (for short 'the Rules') and pray for a declaration that Rules 4(ii) and 4(vii) are ultra-vires of the Constitution. These Rules have been filed as Annexure-3 to the petition. Rules 4, 5 and 8(7) which are under challenge as ultra-vires and unconstitutional are reproduced hereunder for ready reference :

(2.) Similarly, Rule 5(i) as it appears in the printing copy of rules also contained some printing mistakes, as averred by the respondents. In the last but one line a printing mistake has crept in, the word 'not' has been omitted between the words 'shall' and 'be'. The Rules as approved by the Govt. of Assam excludes candidates covered by sub-rules (i), (ii) and (iii) of Rule 4 from appearing at the entrance examination.

(3.) Although, strictly speaking, these Rules are noting but instructions issued under Article 166 of the Constitution of India, they cannot be termed as statutory rules. While the writ petitioners challenged that the Rule S(ii) as notified by way of corrigendum issued by the Director of Medical Education, respondent No. 3 on 11.7.97, while doing so, the Assam Rule of executive Business, particularly Rules 11 and 12 of Part-I and II thereof had not been followed. As such this corrigendum has been denounced as invalid. The respondent however have denied any contravention of the Rules of Executive Business. The other ground of challenge to Rule 5(ii) is that the Rule, as it originally stood, did not stipulate the marks obtained in the common entrance examination as the basis for selection of candidates, as according to them the selection of candidates as provided in Rule 6(1)(b) of the Rules was to be based on merit list prepared by the Gauhati University for selection of candidates for different categories of seats for Post-Graduate Course. The respondents again have sought shelter behind the 'printing mistakes'. According to the respondents the marks obtained at the MBBS examination since the only criteria for finalising the merit list for admission into the Post-Graduate Courses, it is to be considered along with the marks obtained in the Joint examination. So far as the reservation of seats as provided for under Rule 4, the respondents have defended the reservation of two seats in favour of N.E.C. (North Eastern Council) quota on the ground that Assam being the largest State amongst the seven north eastern States, having the maximum facilities for Post-Graduate Courses in Medicine, it is the responsibility of the State of Assam to assist the neighbouring State in strengthening their man-power in medicare and medicine facilities. It was for this reason that the Govt. of Assam had to agree two seats each in Degree and Diploma Courses in the three Medical Colleges in Assam on a regular basis. These seats are to be filled up from the nominees of the North Eastern Council from amongst the candidates of North Eastern States excluding Assam. As for the reversion of seats under Rule 18(vii) which has been challenged by the petitioners, the respondents have taken the plea that All India seat remaining unutilised at times revert back to the State College. Therefore, the Govt. of Assam keeping in mind the interests of the neighbouring State had decided that in case of demand for more seats then what is provided under Rule 4 from the neighbouring States, the said demand will be considered on first priority basis for allotment from the unutilised seats of the Central Govt. quota. It is contended that there is no irregularity in making such a provision. As for reservation of seats in teachers quota, the respondents' case is that in view of the difficulty faced, the teachers' quota has been included along with the general seats. The petitioner's contention that there is bound to be a difference of standards in judging the candidates.