ASHOK BHUSHAN, J. - (1.) Heard Sri Arvind Srivastav learned Counsel for appellant and Sri Ashutosh Srivastav learned counsel appearing for respondents.
(2.) This Special appeal has been filed by the appellant challenging the judgment dated 30-4-2002 passed by learned single Judge in Writ Petition No. 17570 of 2002 by which writ petition filed by appellant has been dismissed.
(3.) Facts giving rise to this appeal briefly stated are Combined Premedical Test (CPMT 2001) has been held by Lucknow University, in accordance with the order of the State Government dated 5-5-2001, CPMT 2001 contemplated holding of a common entrance test for several medical course including MBBS, BDS, BHMS, BAMS and BUMS, petitioner applied for appearing in CPMT 2001 and admit card was issued to the writ petitioner bearing roll number 206418. The writ petitioner appeared in the combined entrance test and obtained an overall rank of 18233. He appeared on 17-4-2002 before the Counselling Board where it was found that he did not possess aggregate 50% marks in Physics, Chemistry, Biology in Intermediate Examination (eligibility examination) hence he was not entitled to seek admission in MBBS/BDS course. The writ petitioner filed a writ petition seeking mandamus commanding the respondents not to restrain the writ petitioner from taking admission in BDS Course on technical grounds. The writ petition was heard by learned single judge and dismissed by order dated 30-4-2002. The learned single Judge took the view that writ petitioner having secured 49.67% marks in qualifying examination, which is less than 50%, he is not eligible for admission to BDS course. The said judgment has been appealed by appellant by this appeal. Sri Arvind Srivastav, learned counsel for appellant in support of this appeal has raised following submissions : 1. The appellant having secured 49.67% marks in the Intermediate examination, the said mark has to be rounded up as to 50%, he contended that since his marks are more than 49.5% it has to be rounded up as 50% which makes him eligible for appearing in entrance examination for BDS course. 2. The University having permitted him to appear in CPMT 2001 it is stopped from taking the plea that appellant is not eligible to appear in BDS course. 3. The eligibility of securing 50% in the qualifying examination is discriminatory, arbitrary and violative of Article 14 of the Constitution of India. The test of merit is solely the entrance examination in which appellant has secured more than 50% marks hence he is fully entitled for admission in BDS course. Regulation 5 (5) Proviso (ii) of the Regulations framed under Indian Medical Council Act, are ultra vires to the Constitution of India. 4. The Government Order dated 5-5-2001 which is a Executive instruction is ultra vires to the Constitution of India. Learned counsel for appellant also cited several decisions in support of his submissions which will be referred to while considering the said submissions.;