Sachin and Others v. Union of India and Others

xxx 77. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.” (emphasis supplied)

16. Recently, the Supreme Court in Dental Council of India v. Biyani Shikshan Samiti, (2022) 6 SCC 65, has summarised the abovementioned principles as under:-

26. It will be relevant to refer to the following observations of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641: 1985 SCC (Tax) 121]: (SCC p. 689, para 75) “75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.”

27. It could thus be seen that this Court has held that the subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on on the ground that it is contrary to some other statute. Though it may also be questioned on the ground of unreasonableness, such unreasonableness should not be in the sense of not being reasonable, but should be in the sense that it is manifestly arbitrary.

28. It has further been held by this Court in the said case that for challenging the subordinate legislation on the ground of arbitrariness, it can only be done when it is found that it is not in conformity with the statute or that it offends Article 14 of the Constitution. It has further been held that it cannot be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant.” (emphasis supplied)

17. A successful challenge to the present regulations can be levelled only on grounds such as, the lack of legislative competence, violation of fundamental rights, repugnancy to other laws, and manifest arbitrariness/unreasonableness.

18. The scheme of the Impugned Regulations indicates that Regulation 7.[7] was added to the amended Regulations on Graduate Medical Education (Amendment) 2019, to limit the number of attempts available to students to clear the 1st year of their MBBS Course. In accordance with these Regulations, from 2019, a student can avail only four attempts to clear their first professional examination.

19. The MBBS includes 4 ½ years of teaching / training followed by 1 year of compulsory rotating medical internship. The maximum time available to complete the entire course is 10 years. The Petitioners even after a passage of 3 years have been unable to pass even the first year of their MBBS course.

20. It has been submitted by Respondent No. 2 that the erstwhile MCI had framed the Graduate Medical Education Regulations, 1997, under the powers conferred to it by Section 33 of the Indian Medical Council Act, 1956. The constitutionality of these Regulations has been upheld by various judgments of the Hon’ble Supreme Court. The Impugned Regulations have been added as a part of Part-II of the amended Regulations on Graduate Medical Education (Amendment) 2019, which was published in the Gazette of India on 06.11.2019. The amendment was carried out in pursuance of Section 56 of the National Medical Commission Act, 2019 which allows the Central Government to make rules to enable the objectives of the National Medical Commission Act, 2019. Evidently, the Respondent No. 2 has the requisite legislative competence to enact the Impugned Regulation.

21. The Respondent No. 2 submitted that that the rationale behind the Impugned Regulation was that only students with adequate aptitude and merit must be made doctors in order to serve the general public at large. Further, this requirement was added to ensure that students who have the adequate aptitude are allowed to go forward, while other students, may at an early stage without wasting time and resources pursue their vocational callings. This also ensures that the precious resources of State universities are preserved and directed towards providing quality medical education to candidates who have shown a sustained interest and predisposition to medical sciences. These considerations of the State are valid, and it is well within its right to frame rules and regulations to pursue and establish this purpose.

22. This Court does not find the rationale put forth by Respondent No.2 to be arbitrary. Considering that medicine is a noble profession, and that a doctor serves the general public at large, the Government must have rules and regulations that ensure that only individuals with the inclination coupled with the requisite calibre are made medical professionals. Considering this, it is evident that the Impugned Regulations have been notified after careful thought and deliberation, and do not attract the vice of arbitrariness. It cannot be said that a candidate has a right to take an examination for any number of times and the regulating authority cannot put cap on the number of attempts and such a cap which is put on the candidate takes away any right of a candidate.

23. The Petitioners have failed to dislodge the presumption of constitutionality existing in favour of the Impugned Regulations.

24. The second issue before this Court is whether the Petitioners should be given another chance to appear for their first year professional examination.

25. The Petitioners are enrolled in various medical colleges in Haryana. They have already exhausted their four attempts, and have now come before this Court seeking another chance on the ground that they had suffered immensely during the COVID-19 pandemic.

26. Recently, the Supreme Court in Rachna and Others v. Union of India and Another, (2021) 5 SCC 638, evaluated whether the Petitioners therein should be granted another attempt to appear for the Civil Services (Preliminary) Examination, 2020. Rejecting the plea of the Petitioners therein, the Apex Court held as under:-

27. From the foregoing, it is evident that all candidates appearing for the Civil Services Exam were to be treated equally. Further, the Respondent NO. 2 did not have the discretion to grant the Petitioners therein another chance, in light of the Rules therein. In a similar vein, in the instant case, if an additional chance is accorded to the Petitioners herein, all attemptees who had also suffered would ask for another chance. More importantly, even in the case at hand, the Respondent No. 2 does not have discretionary power to grant another opportunity to the Petitioners to appear for the exam in light of the Impugned Regulations.

28. Furthermore, previously as well, the Apex Court in National Board of Examinations v. G. Anand Ramamurthy, (2006) 5 SCC 515, in a similar circumstance has observed as under:-

29. Furthermore, it has been contended by the Petitioners that the Impugned Regulations ought not to have been given a retrospective application to prejudice their rights. The question of whether or not the retrospective application of the Impugned Regulations would affect the rights of the Petitioners would only apply if the said rights were “vested” in nature.

30. Recently, the Supreme Court in Manish Kumar v. Union of India, (2021) 5 SCC 1, carefully delineated its previous judgments to make the following observations with respect to a vested right:-

367. Though Bibi Sayeeda case [Bibi Sayeeda v. State of Bihar, (1996) 9 SCC 516: AIR 1996 SC 1936] is a case which dealt with vested right qua property there is indeed authority for the proposition that the concept of vested right is not confined to a property right. In this regard we may profitably refer to the Special Bench judgment of the High Court of Calcutta in Gopeshwar Pal v. Jiban Chandra Chandra [Gopeshwar Pal v. Jiban Chandra Chandra, 1914 SCC OnLine Cal 95: ILR (1914) 41 Cal 1125: AIR 1914 Cal 806], referred to by this Court in New India Insurance Co. Ltd. v. Shanti Misra [New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840] wherein it was, inter alia, held: (Gopeshwar Pal case [Gopeshwar Pal v. Jiban Chandra Chandra, 1914 SCC OnLine Cal 95: ILR (1914) 41 Cal 1125: AIR 1914 Cal 806], SCC OnLine Cal: AIR paras 3 and 4) “3. On the contrary, the essential conditions of the two cases are so distinct that in our opinion it cannot be said that the earlier decision is, in relation to the circumstances of this case, affected by the judgment [Lala Soni Ram v. Kanhaiya Lal, 1913 SCC OnLine PC 7] of the Privy Council. It is an established axiom of construction that though procedure may be regulated by the Act for the time being in force, still, the intention to take away a vested right without compensation or any saving, is not to be imputed to the legislature, unless it be expressed in unequivocal terms [Commr. of Public Works (Cape Colony) v. Logan [Commr. of Public Works (Cape Colony) v. Logan, 1903 AC 355 (PC)] ]. That this view is not limited to those cases where rights of property in the limited sense are involved, is shown byColonial Sugar Refining Co. Ltd. v. Irving [Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369 (PC)], where it was held that an Act ought not to be so construed as to deprive a suitor of an appeal in a pending action, which belonged to him as of right at the date of the passing of the Act. Equally is a right of suit a vested right, and in Jackson v. Woolley [Jackson v. Woolley, (1858) 8 El & Bl 784: 120 ER 292], the Court of Exchequer Chamber declined, in the absence of something putting the matter beyond doubt, to put on an Act a construction that would deprive any person of a right of action vested in him at the time of the passing of the Act.

4. William, J. said:„It would require words of no ordinary strength in the statute to induce us to say that it takes away such a vested right.‟ ”

31. A vested right is one which has already accrued, and hence, cannot thus be interfered or taken away by the legislature, unless expressly so stated [Refer to: Memon Abdul Karim Haji Tayab Vs. Dy. Custodian-General, (1964) 6 SCR 837].

32. In the present case, the Petitioners did not have an accrued/vested right to be given infinite chances to complete their degree. Even before the Impugned Regulations came into place, the Petitioners were aware that they were supposed to complete their degree in 10 years, which indicates that there existed bar and fetters on the right of the Petitioner to obtain their degree. The legislature was well within its power to apply the impugned regulation even the students had taken admission prior to the enactment of the legislation.

33. The contention of the Petitioners that since they did not know of the Impugned Rule at the time of admission, they had a legitimate expectation of having infinite chances cannot be accepted. The Apex Court has exhaustively dealt with the doctrine of legitimate expectation, and has crystallised the principles delineating the doctrine as well. Illustratively, in Union of India v. International Trading Co., (2003) 5 SCC 437, it held as under:-

34. Furthermore, in Sethi Auto Service Station v. DDA, (2009) 1 SCC 180, the following was observed:-

35. From the above, it is evident that this Court does not have wide ranging powers to review policies under the ground of legitimate expectation. In the case at hand, as already discussed, the Petitioners did not have a legitimate expectation to get infinite opportunities to qualify in the medical examination. It cannot be said that the number of attempts that can be taken by a candidate to clear an examination cannot be curbed. There cannot be a right to attempt any examination any number of times. As per the dictum of International Trading Co. (supra), whether someone has a legitimate expectation or not should be viewed from the lens of the general public and not the person whose rights have supposedly been curtailed. Considering that public interest weighs heavily in favour of policy determined by the State, this Court is of the opinion that the Petitioners did not have any legitimate expectation. Further, even if the Petitioners had a legitimate expectation, there is no abuse of power necessitating the interference of this Court.

36. It appears that the Petitioners have failed to dislodge the presumption of constitutionality existing in favour of the Impugned Regulation. Furthermore, the Petitioners do not have any vested right to secure a medical degree, hence, the Impugned Regulation can be applied retrospectively. Lastly, it has also been determined that the Petitioners do not have a legitimate expectation to either get a degree or get another attempt. Even if it is determined that such a legitimate expectation exists, which according to this Court does not exist, in the absence of abuse of power, and keeping in line with the policy of the State, this Court finds no reason to interfere with the Impugned Regulation on the basis of this ground.

37. In light of the above, this Court does not find any occasion to interfere with the Impugned Regulations.

38. Accordingly, the Writ Petitions are dismissed, along with pending application(s), if any.

SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J NOVEMBER 17, 2022