RAJAN PUROHIT Vs RAJ.UNIV.OF HEALTH SCIENCE .
Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: C.A. No.-008142-008142 / 2011
Diary number: 27401 / 2009
Advocates: A. VENAYAGAM BALAN Vs
ABHINAV MUKERJI
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8142 OF 2011
Rajan Purohit & Ors. … Appellants
Versus
Rajasthan University of Health Science & Ors. … Respondents
WITH
CIVIL APPEAL NO.8143 OF 2011, CIVIL APPEAL NO.8144 OF 2011,
CIVIL APPEAL NO. 6210 OF 2012 (Arising out of SLP (C) No.24967 of 2011)
AND CIVIL APPEAL NO. 6211 OF 2012
(Arising out of SLP (C) No.25353 of 2011)
J U D G M E N T
A. K. PATNAIK, J.
CIVIL APPEAL NO. 8142 OF 2011, CIVIL APPEAL NO.8143 OF 2011 AND CIVIL APPEAL NO.8144 OF 2011:
These are appeals by way of special leave under Article
136 of the Constitution of India against the common order
and judgment dated 03.09.2009 of the Division Bench of the
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Rajasthan High Court, Jaipur Bench, in Special Appeal
Nos.241 of 2009 and 386 of 2009.
FACTS
2. The facts very briefly are that the Secretary, Medical
Education, Government of Rajasthan, held a meeting on
04.12.2007 for the purpose of conducting a common
entrance test for admission to the Medical and Dental
Colleges in the State of Rajasthan for the academic year
2008-2009. Besides the Secretary, Medical Education,
Government of Rajasthan, the Registrar, Rajasthan Medical
University of Health Sciences, Jaipur, Professor Anatomy of
Medical College, Jaipur, Special Officer, Technical
Education Department, Government of Rajasthan,
representative from the Federation of Private Medical and
Dental Colleges of Rajasthan, Jaipur, Managing Director,
Geetanjali Medical College, Udaipur, Managing Director,
National Institute of Medical Sciences, Jaipur, were also
present in the meeting. Geetanjali Medical College and
Hospital (for short ‘the College’) was yet to receive its
permission from the Government of India and affiliation
from the Rajasthan University of Medical Sciences and on
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12.12.2007, the Chairman and Managing Trustee of the
Geetanjali Foundation Shri Jagdish Prasad Agarwal gave a
written undertaking that the College will admit the students
to the MBBS course only after getting permission from the
Government of India and after getting affiliation from the
Rajasthan University of Medical Sciences. Another meeting
for the aforesaid purpose was held under the Chairmanship
of the Secretary, Medical Education on 15.12.2007 and at
this meeting it was decided that students will be made
available for 85% of the seats in the medical colleges in the
State of Rajasthan through the Rajasthan Pre-Medical Test
2008 (for short the ‘RPMT-2008), and the remaining 15%
seats of the colleges will constitute NRI quota which will be
filled by the colleges. The representative of the College did
not participate in the meeting on the ground that inspection
of the College by the Medical Council of India (for short
‘MCI’) was going on. The Director of the College in his letter
dated 18.12.2007 to the Secretary, Medical Education,
Government of Rajasthan, while expressing his inability to
attend the meeting on 15.12.2007, explained that the
College cannot participate in the admission procedure and
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cannot give consent for taking the students from the RPMT-
2008 till the College received the clearances from the MCI.
Thereafter, the inspection report in respect of the College
was considered by the Executive Committee of the MCI on
12.05.2008 and the MCI decided to recommend to the
Government of India to issue the permission letter for
establishment of the College with an annual intake of 150
students for the academic year 2008-2009. The
Government of India, Ministry of Health and Family
Welfare, however, took a decision not to grant permission
for establishment of the College for the academic year 2008-
2009 and communicated this decision in its letter dated
04.08.2008 to the Chairman and Managing Trustee of the
Geetanjali Foundation.
3. Aggrieved, the College filed Writ Petition (C) No.357 of
2008 before this Court under Article 32 of the Constitution
of India and on 03.09.2008 this Court disposed of the writ
petition after recording the statement of the learned
Additional Solicitor General that the revised orders will be
passed by the Government of India within a week in respect
of the College. In the order dated 03.09.2008 disposing of
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the writ petition of the College, this Court further observed
that the College may complete the admissions by
30.09.2008 in accordance with the rules and procedure laid
down for the purpose of admissions. The Government of
India, Ministry of Health and Family Welfare, then issued a
permission letter dated 16.09.2008 for establishment of the
College with an annual intake capacity of 150 students with
prospective effect from the academic year 2008-2009 under
Section 10A of the Indian Medical Council Act, 1956. In
this permission letter dated 16.09.2008, it was inter alia
stipulated that the admission process for the academic year
2008-2009 has to be completed by the College within the
time schedule indicated in the Regulations on Graduate
Medical Education, 1997 made by the MCI.
4. The College by its letter dated 25.09.2008 requested
the President, Federation of Private Medical and Dental
Colleges of Rajasthan to allot students to the College by
conducting counselling and the College also issued an
advertisement on 26.09.2008 in leading newspapers inviting
applications from the candidates for admission counselling
to the first year MBBS course for the academic year 2008-
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2009 on the basis of PC-PMT/10+2 examination with
minimum 50% marks in Physics, Chemistry and Biology as
per regulations of the MCI and stated in the advertisement
that the last date of receipt of the applications would be
28.09.2008 and the candidates will be selected on the basis
of merit. After counselling, out of the 150 seats of the
College in first year MBBS course, 16 seats were filled up by
students from PC-PMT conducted by the Federation of
Private Medical and Dental Colleges of Rajasthan and 101
seats were filled up from amongst candidates who had
passed the 10+2 examination and 23 seats of the NRI quota
were filled up by the College.
5. Some of the candidates who were selected through the
RPMT-2008 and placed in the waiting list of candidates for
admission to the MBBS seats in the medical colleges in the
State of Rajasthan filed eight writ petitions before the
Rajasthan High Court, Jaipur Bench, contending that they
were entitled to be admitted to the seats of the College in
the first year MBBS course on the basis of their merit in the
RPMT-2008 and praying for a direction to the College to
consider and give them admission in the MBBS course in
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the College against the 85% seats of the 150 seats on the
basis of their merit in RPMT-2008 by holding counselling
and further praying that no one should be admitted against
the 150 seats from any source other than the RPMT-2008.
The learned Single Judge of the High Court, who heard the
writ petitions, initially passed an interim order on
29.09.2008 directing that ten seats in the College will be
reserved for the writ petitioners. The learned Single Judge
of the High Court thereafter passed the final order on
18.03.2009 holding that the RPMT-2008 was conducted in
accordance with Regulation 5 of the Regulations on
Graduate Medical Education, 1997 made by the MCI (for
short ‘the MCI Regulations’) as well as in accordance with
Ordinance 272 (IV) and the policy of the State Government
and the College could not have admitted candidates to the
85% of the seats in the MBBS course as per its own choice
at the cost of meritorious students placed in the waiting list
of candidates found successful in the RPMT-2008. The
learned Single Judge of the High Court thus allowed the
writ petitions and declared that the admissions made by the
College in MBBS course for the academic year 2008-2009
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against 85% of the seats were illegal and directed the State
to hold counselling from the waiting list of students of
RPMT-2008 and further directed that the writ petitioners
will be given admission as per their merit position in the
waiting list and the process be completed before the
commencement of the RPMT-2009. The final order dated
18.03.2009 of the learned Single Judge was challenged by
the College as well as the students who were admitted by
the College in Special Appeals before the Division Bench of
the High Court. All these Special Appeals were heard by a
Division Bench of the Rajasthan High Court, Jaipur Bench,
but dismissed by a common order dated 03.09.2009.
Aggrieved, the students who had been admitted into the
College have filed Civil Appeal Nos.8142 of 2011 and 8143
of 2011 and the College has filed Civil Appeal No.8144 of
2011.
6. Mr. K. K. Venugopal, Mr. Dushyant Dave, Mr. Ravinder
Shrivastav and Mr. Pallav Shishodia, learned senior counsel
for the appellants, submitted that the college had not agreed
to admit students to its MBBS seats from amongst the
students selected in the RPMT-2008 in the meeting held on
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15.12.2007 under the Chairmanship of the Secretary,
Medical Education, Government of Rajasthan because the
College did not have the permission from the Government of
India to establish the College. They submitted that the first
counselling for students selected in the RPMT -2008 for
admission in the MBBS course was held on 17.07.2008 and
second and last counselling for such students selected in
the RPMT-2008 for admission in the MBBS course was over
on 24.09.2008 and the College received the letter of
permission from the Government of India for establishing
the College for MBBS course with an annual intake of 150
students for the academic year 2008-2009 onwards on
25.09.2008 and by this date as the second and last
counselling for the candidates selected on the basis of
RPMT-2008 was over, the College could not admit the
students to 85% of the seats in the MBBS course on the
basis of the RPMT-2008. They submitted that in these
peculiar facts the College issued an advertisement in
leading newspapers inviting applications from the
candidates for admission in the first year MBBS course for
the academic year 2008-2009 on the basis of their merit in
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PC-PMT or 10+2 examination. They submitted that the
Principal of the R.N.T. Medical College and Controller by his
letter dated 29.09.2008 also constituted a team of five
officers with Professor and Head of Department of Pathology
& Academic Officer of the College as the Chairman to
supervise the admissions in the College. They submitted
that after counselling, 16 students were admitted from the
list of candidates selected on the basis of PC-PMT
conducted by the Federation of the Private and Dental
Colleges of Rajasthan on the basis of their merit and 101
students were admitted on the basis of their merit in 10+2
examination in the MBBS course of the College.
7. They relied upon the judgment of this Court in T.M.A.
Pai Foundation & Ors. v. State of Karnataka & Ors. [(2002) 8
SCC 481] in which it has been held that a private unaided
non-minority institution has the right to establish and
administer an educational institution under Article 19(1)(g)
of the Constitution of India and that such right includes the
right to admit students into the institution. They also cited
the judgment of this Court in P.A. Inamdar & Ors. v. State of
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Maharashtra & Ors. [(2005) 6 SCC 537] in which the law
laid down in T.M.A. Pai Foundation (supra) was clarified and
it was held that non-minority unaided institutions, like the
minority institutions, can also legitimately claim unfettered
fundamental right to choose the students to be allowed
admission and the State cannot impose a quota of seat
sharing in such institutions and that this can only be done
by a consensual arrangement. They submitted that in P.A.
Inamdar (supra), this Court further held that all private
institutions imparting same or similar professional
education can join together for holding a common entrance
test satisfying the triple tests of the admission procedure
being fair, transparent and non-exploitative. They
submitted that in accordance with the aforesaid law laid
down by this Court in T.M.A. Pai Foundation and P.A.
Inamdar (supra), a common entrance test, namely, PC-PMT
2008, was held by the Federation of the Private and Dental
Colleges of Rajasthan and on the basis of the merit as
determined in PC-PMT 2008, 16 students have been
admitted to the MBBS course of the College.
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8. They submitted that the finding of the High Court that
admission to the 85% of the seats in the MBBS course of
the College could, as per the MCI Regulations, be made only
on the basis of merit as determined in the RPMT is not
correct. They submitted that Regulation 4 of the MCI
Regulations lays down the “eligibility criteria” for admission
to the MBBS course and it provides that a candidate should
have completed the age of 17 years on or before the date
mentioned therein and he should have passed the qualifying
examination. They submitted that all the 117 students
(16+101) admitted to the MBBS course in the College for the
academic year 2008-2009 fulfilled the requirements
regarding age and passing of qualifying examination as
provided in Regulation 4 of the MCI Regulations. They
submitted that Regulation 5 of the MCI Regulations states
that the selection of students to medical college shall be
based solely on the merit of the candidate and clause (1) of
Regulation 5 states that for determining the merit, the
marks obtained at the qualifying examination may be taken
into consideration. They argued that the marks of 101
students admitted on the basis of their 10+2 qualifying
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examination were taken into consideration and, therefore,
Regulation 5 of the MCI Regulations had not been violated.
They submitted that in the facts of the present case since
the seats of the MBBS course in the College had to be filled
up for the academic year 2008-2009 on or before
30.09.2009, the College had no option but to fill up the
seats on the basis of merit as determined in the 10+2
examination after publishing the advertisement in the
leading newspapers.
9. Learned senior counsel for the appellants also
submitted that none of the students, who had applied
pursuant to the advertisement published by the College for
admission on the basis of merit as determined in the PC-
PMT 2008 or the 10+2 examination, had made any
grievance before any authority that they were not given
admission on the basis of merit or that students with lesser
merit had been admitted in the seats for the MBBS course
in the College for the academic year 2008-2009. They
argued that in fact, as desired by the High Court, a report
was called for on the admissions made by the College in the
MBBS course for the academic year 2008-2009 and a
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Committee comprising the Deputy Secretary, Medical
Education, Government of Rajasthan, the Registrar,
Rajasthan University of Health Sciences, Jaipur, Dean,
Medical College, Jhalawar and Professor, M.M. Medical
College, Ajmer, examined all the records of admissions and
conducted an enquiry and submitted a report with a finding
that though the College was directed by the State
Government to admit students from RPMT-2008,
admissions were given by the College on the basis of PC-
PMT on merit in 10+2 examinations due to availability of
short period for admissions and the Rajasthan University of
Health Sciences has treated the admissions to be irregular
and not illegal.
10. Learned senior counsel for the appellants cited the
judgment of this Court in Chowdhury Navin Hemabhai &
Ors. v. State of Gujarat & Ors. [(2011) 3 SCC 617] in which
this Court has held that even though under the MCI
Regulations the appellants could not be admitted to the
MBBS course in the academic year 2008-2009, for the
purpose of doing complete justice in the matter, the
admissions of the appellants therein to the MBBS course in
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the College during the academic year 2008-2009 should not
be disturbed. They also submitted that a similar view has
been taken by this Court in Deepa Thomas & Ors. v. Medical
Council of India & Ors. [(2012) 3 SCC 430] wherein this
Court agreed with the view of the MCI and the High Court
that the admissions of the appellants therein were irregular
as they had not secured the minimum marks of 50% in the
common entrance examination as prescribed in the MCI
Regulations and yet directed, as a special case, that the
appellants therein shall be allowed to continue and
complete their MBBS course and should be permitted to
appear in the University examinations as if they had been
regularly admitted to the course. They submitted that in
the event this Court is of the opinion that the MCI
Regulations 1997 have been violated in admitting the 117
students in the MBBS course of the College, to do complete
justice in the matters, this Court should allow these
students to continue in the MBBS course in exercise of its
powers under Article 142 of the Constitution of India as has
been done in the aforesaid two cases.
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11. Mr. Amarendra Sharan, learned senior counsel
appearing for the MCI, submitted that the Division Bench of
the High Court has in the impugned order held that the
stand of the College that the permission letter dated
16.09.2008 of the Central Government was received by the
College on 25.09.2008, i.e. after the second and last
counselling of students selected in the RPMT-2008 was
over, appears to be doubtful. He supported the aforesaid
finding of the High Court and argued that the College
avoided to participate in the counselling of students selected
in the RPMT-2008 even though it was aware that the
Government of India had granted the permission for
establishing the College on 16.09.2008. He submitted that
the MCI Regulations were made by the MCI with the
previous sanction of the Central Government in exercise of
power conferred under Section 33 of the Indian Medical
Council Act, 1956 and was, therefore, statutory in character
and are binding so far as admissions to medical colleges are
concerned. He vehemently argued that the letter dated
16.09.2008 of the Secretary of the MCI clarifying that
admissions could be made on the basis of marks in the
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qualifying examination to complete the admissions by 30th
of September could not override the MCI Regulations. He
submitted that Regulation 4 of the MCI Regulations, which
provides the minimum eligibility of students to be admitted
to the MBBS course, is not the only provision which has to
be followed by the Medical Colleges for admissions to the
MBBS course. He submitted that Regulation 5 of the MCI
Regulations provided that selection of students to a medical
college shall be based solely on merit of the candidates and
clause (2) of Regulation 5 stipulated that in States, having
more than one university/board/examining body
conducting the qualifying examination a competitive
entrance examination should be held so as to achieve a
uniform evaluation as there may be variation of standard at
qualifying examination conducted by different agencies. He
submitted that selection for the 85% of the seats in the
College for the academic year 2008-2009 could, therefore,
be only on the basis of merit as determined in a competitive
entrance examination and not on the basis of the marks
obtained in qualifying examination. He submitted that
there is a clear finding in the impugned order of the High
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Court that the College was not listed in brochure with the
application form notified by the Federation of Private
Medical and Dental Colleges of Rajasthan for PC-PMT 2008
and in fact no competitive entrance examination was
conducted for admission to the MBBS course of the College.
He argued that the admissions of the 16 students in the
MBBS course for the academic year 2008-2009 on the basis
of PC-PMT 2008, thus, were not on the basis of merit as
determined in a competitive entrance examination as is
sought to be made out by the appellants. He submitted that
names of 101 candidates who had been admitted on the
basis of their marks in the qualifying examination vis-a-vis
of the candidates who had not been admitted had not been
determined in a common competitive entrance examination.
He argued that the only way the College could comply with
the provisions of clause (2) of Regulation 5 of the MCI
Regulations was to admit students selected in the RPMT-
2008. He submitted that in T.M.A. Pai Foundation and P.A.
Inamdar (supra) cited by the learned counsel for the
appellants, this Court has also held that the admissions to
the private unaided professional colleges have to be made by
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selection through a common entrance test and in the
aforesaid judgments, this Court has not held that the MCI
Regulations will not be followed while giving admissions to
the MBBS course. He submitted that this Court, on the
contrary, has held in Dr. Preeti Srivastava & Anr. v. State of
M.P. & Ors. [(1999) 7 SCC 120], State of M.P. & Ors. v. Gopal
D. Tirthani & Ors. [(2003) 7 SCC 83] and Harish Verma &
Ors. v. Ajay Srivastava & Anr. [(2003) 8 SCC 69] that the
Regulations of the MCI laying down the standards of
education for post-graduate medical courses have to be
complied with.
12. Mr. Sharan finally submitted that as the admissions to
85% of the seats in the College for the academic year 2008-
2009 were in violation of clause (2) of Regulation 5 of the
MCI Regulations, the High Court was right in declaring the
admissions to be invalid. He submitted that if the Court, in
exercise of its powers under Article 142 of the Constitution,
shows any sympathy to the students admitted to the MBBS
course, in breach of the MCI Regulations, there would be
academic chaos. According to him, there was no equity
either in favour of the College or in favour of the students
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who had been admitted to the College in violation of clause
(2) of Regulation 5 of the MCI Regulations. He cited the
decision in A.P. Christians Medical Educational Society v.
Government of Andhra Pradesh & Anr. [(1986) 2 SCC 667] in
which this Court rejected the plea that the interests of the
students should not be sacrificed because of the conduct or
folly of management and that they should be permitted to
appear at the university examination notwithstanding the
circumstance that permission and affiliation had not been
granted to the institution. He also relied on the
observations of this Court in Regional Officer, CBSE v. Ku.
Sheena Peethambaran & Ors. [(2003) 7 SCC 719] that
condoning the lapses or overlooking the legal requirements
in consideration of mere sympathy factor does not solve the
problem, but disturbs the discipline of the system and
ultimately, adversely affects the academic standards. He
submitted that in A. B. Bhaskara Rao v. Inspector of Police,
CBI Vishakapatnam [(2011) 10 SCC 259] this Court has laid
down the principles governing the exercise of power under
Article 142 of the Constitution of India and one of the
principles is that the Court generally does not pass an order
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in contravention of or ignoring the statutory provisions nor
is the power exercised merely on sympathy.
13. He also cited the observations of this Court in
Visveswaraiah Technological University & Anr. v. Krishnendu
Halder & Ors. [(2011) 4 SCC 606] that no student or college,
in the teeth of the existing and prevalent rules of the State
and the University can say that such rules should be
ignored, whenever there are unfilled vacancies in colleges.
He submitted that if the College was not able to fill up the
seats in the MBBS course for the academic year 2008-2009
for the reason that the second and last counselling of
students selected on the basis of RPMT-2008 was over, the
seats should have been kept vacant and could not have
been filled up in violation of the MCI Regulations.
14. Mr. Jasbir Singh Malik, learned counsel for the State
of Rajasthan, adopted the arguments of Mr. Amarendra
Sharan and further submitted that the information book on
RPMT-2008 mentioned the College as one of the Colleges
covered by the RPMT-2008 and, therefore, the College
cannot contend that the students who are selected in the
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RPMT- 2008 were not to be admitted to the MBBS seats of
the College. He submitted that at the meeting of the Central
Under-Graduate Admission Board on 23.09.2008, it was
decided not to include the College for the counselling as
there was no intimation from the College, but it was
recorded in the proceedings of the meeting that if
information is received from the College then students can
be provided from the RPMT-2008 by holding counselling at
the College at Udaipur at their cost. He submitted that a
separate counselling could therefore be held for students
who had been selected on the basis of RPMT-2008 for
admission to the College if the College had intimated the
Convener of the Central Under-Graduate Admission Board
that it had got the permission letter dated 16.09.2008 after
the second counselling of students selected in the RPMT-
2008. He submitted if such separate counselling for
admission to the MBBS seats in the College would have
been held, it would have been the first counselling so far as
this College was concerned and there was no bar as per the
law laid down by this Court for holding such separate
counselling for the College.
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15. Mr. Naveen Kumar Chauhan, learned counsel
appearing for the Rajasthan University, adopted the
arguments of Mr. Amarendra Sharan, learned senior
counsel appearing for the MCI, and Mr. Jasbir Singh Malik,
learned counsel for the State of Rajasthan, and further
submitted that the College had been included in the
information brochure of the RPMT-2008 published on
26.02.2008 because it had initially agreed to participate in
the RPMT-2008 at the meeting which took place in
December, 2007. He referred to the findings of the Division
Bench of the High Court in the impugned order that the
College never raised objection about its inclusion in the
brochure published by the State Government for RPMT-
2008 when the process of admission was initiated by the
authorities for holding the RPMT-2008. He submitted that
the Division Bench of the High Court has also recorded the
finding that on 16.09.2008, the College itself has sent a
letter to the Vice-Chancellor of the University of Health
Sciences saying that if it gets the approval from the
Government of India after the second counselling of the
students selected on the basis of the RPMT-2008, a request
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will be made by the College to suggest the way or to provide
the merit list of RPMT-2008 students for admission in the
College. He submitted that both the learned Single Judge
and the Division Bench have also taken note of the
Ordinance 272 of the University which provides that all
private unaided professional institutions will be under an
obligation to admit students to the MBBS or the BDS
courses on the basis of the selection for admission to
MBBS/BDS courses in the Government Colleges. He finally
argued that Mr. Jagdish Prasad Agarwal, the Chairman and
Managing Trustee of the Geetanjali Foundation, had
furnished a written undertaking on 12.12.2007 that it will
admit students in MBBS degree only after getting the
permission from the MCI/Government of India and after
getting affiliation from the Rajasthan University of Medical
Sciences, but the College had given admission to the
students even before getting affiliation from the University.
16. Ms. Anuradha Soni Verma, appearing for the private
respondents, who had filed writ petition in the High Court
submitted that none of the students who had been admitted
into the College in the MBBS seats for the academic year
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2008-2009 have been enrolled by the University and it is
only pursuant to the orders of the Court that they had been
permitted to take examinations of the MBBS course.
FINDINGS WITH REASONS
17. The College is a private unaided professional
institution and it has been held by this Court in T.M.A. Pai
Foundation (supra) that a private unaided professional
institution has a fundamental right under Article 19(1)(g) of
the Constitution of India to establish and administer an
educational institution and such right will include the right
to admit students into the institution. In P.A. Inamdar
(supra), this Court has explained the judgment in T.M.A. Pai
Foundation (supra). Paragraphs 127 and 128 of the
judgment of this Court in P.A. Inamdar (supra), as reported
in the SCC, are quoted hereinbelow:
“127. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat- sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats.
128. We make it clear that the observations in Pai Foundation in paragraph 68 and other
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paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.”
Hence, in the absence of a consensual arrangement between
the College and the State Government, the College was not
under any legal obligation to admit students to 85% of the
MBBS seats in the academic years 2008-2009. The learned
Single Judge and the Division Bench of the High Court in
the present batch of cases, however, appear to have
recorded a finding that a consensual arrangement was there
between the College and the State Government of Rajasthan
that 85% of the seats in the MBBS course in the College will
be filled up from amongst students selected in the RPMT-
2008. Learned counsel for the appellants have disputed
this finding of the High Court.
18. Hence, the first question that we have to decide in this
case is whether the College had agreed to admit students
placed in the merit list or waiting list of RPMT-2008 into the
85% of 150 seats of the MBBS course approved by the
Central Government. We find that in the proceedings of the
meeting held on 15.12.2007 under the Chairmanship of
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Secretary, Medical Education, for conducting a common
entrance test for admissions to MBBS seats in different
colleges in the State of Rajasthan, it has been recorded in
Para 5:
“Students will be made available on 85 per cent seats through R.P.M.T. to National Institute of Medical Sciences, Jaipur and Geetanjali Medical College and Hospital Udaipur. Consent has already been given in this connection earlier by Mahatma Gandhi Medical College and Hospital, Jaipur. On the remaining 15 per cent seats (N.R.I. quota) admissions will be given by these institutions.”
From the aforesaid proceedings, it is clear that although a
decision was taken by the authorities that students will be
made available on 85 per cent seats through R.P.M.T. to
Geetanjali Medical College and Hospital Udaipur (the
College), there is no mention that the College (Geetanjali
Medical College) had given its consent to this arrangement
although there is a mention that Mahatma Gandhi Medical
College and Hospital, Jaipur, has given its consent to the
aforesaid consensual arrangement earlier. In fact, there
was no representation of the College at the meeting held on
15.12.2007 and on 18.12.2007 the Director (Foundation) of
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the College addressed the following letter to the Secretary to
the Government Medical Education, Government of
Rajasthan:
“GMCH
HEALTH IS HAPPINESS
GF/GMCH/07 December 18, 2007
Dr. Govind Sharma, IAS Secretary to the Government Medical Education, Government of Rajasthan Secretariat JAIPUR (RAJASTHAN)
Sub: Participation in Admission Procedure
Respected Sir,
In the above reference we have received your letter to attend the meeting schedule on 15th December 2007 for participation in the admission procedure for admission of students in 2008. I was not able to attend the meeting as the MCI inspection was going on at our place. Further to this we have given an undertaking to the MCI that till all the clearances received from MCI we cannot participate in the admission procedure. Therefore we cannot give consent that we will take the students from PMT or PCMT till we receive the clearances.
Kindly have a note of the same and oblige.
Thanking you,
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Yours sincerely, For GEETANJALI MEDICAL COLLEGE & HOSPITAL Sd/-
(M.S. Bhatt) DIRECTOR (FOUNDATION)
Encl: as above”
From the aforesaid letter also, it is clear that the College
was not willing to give consent that it will take students
from RPMT-2008 till it received the clearances. When the
College, however, came to learn that it will be receiving its
clearances from the Government of India, it wrote a letter
dated 16.09.2008 to the Vice Chancellor of the Rajasthan
University of Health Sciences in which it is stated as follows:
“To,
The Vice Chancellor, Rajasthan University of Health Sciences,
Jaipur.
Sub: - Admissions in M.B.B.S. Course for Session 2008-09
Hon’ble Sir,
In the above reference kindly note that till we have not received the approval for Govt. of India, However, if the approval comes after the second counselling that kindly suggest us the way or/Provide us the Merit
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List of RPMT Students for the admission in our college.
Kindly do the needful and oblige.
Thanking you,
Sd/- (Nitin Sharma) Authorised Signatory”
In reply to the aforesaid letter dated 16.09.2008, the Vice
Chancellor of the Rajasthan University of Health Sciences
wrote back that if the College wants to admit students for
the academic year 2008-2009 then it should confirm the
number of seats for allotment so that seats may be allotted
in the upcoming counselling of RPMT-2008 on 23.09.2008.
The letter dated 23.09.2007 of the Vice Chancellor,
Rajasthan University of Health Sciences, to the College is
extracted hereinbelow:
“RAJASTHAN UNIVERSITY OF HEALTH SCIENCES Sector-18, Kumbha Marg,
Partap Nagar, Jaipur-302033
Sr. No.F-11() RPMT/RUHS/2008-09 22nd September, 2008
To, Nitin Sharma,
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Geetanjali Medical College & Hospital, Udaipur.
Sub: Admissions in M.B.B.S. Course for Session 2008-09
Sir, In reply to your letter dated 16.09.2008, with
regard to the above said subject, it is submitted that if you want to admit the students for the session of 2008-09 then you should confirm the number of seats for allotment so that seats may be allotted in the upcoming counseling of RPMT-2008 on 23.09.2008.
Sd/- Vice Chancellor”
The aforesaid discussion would show that there is in fact no
consensual arrangement between the College and the State
or the University that the College will admit students from
the merit list or wait list of RPMT-2008. The finding of the
learned Single Judge and the Division Bench of the High
Court that there was such a consensual arrangement
between the College and the State Government to admit
students from the merit list or wait list of RPMT-2008 is,
therefore, erroneous. Hence, the direction of the High Court
to the College to consider and admit students from the merit
list or wait-list of RPMT-2008 will have to be set aside.
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19. We may next consider the question whether the
admissions of 117 students to the MBBS course of the
College were within the fundamental right of the College as
explained by this Court in T.M.A. Pai Foundation (supra). In
T.M.A. Pai Foundation (supra), this Court, while holding that
a private unaided non-minority institution has the right to
establish and administer an educational institution under
Article 19(1)(g) of the Constitution of India also held that
such right will include the right to admit students into the
institution. In paragraphs 58 and 59 of the judgment,
however, Kirpal, CJ speaking for the Court observed:
“58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.
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59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.”
The observations in para 58 of the judgment of Kirpal, CJ.
quoted above make it clear that students seeking admission
to a professional institution were required to be treated
fairly and preferences were not to be shown to less
meritorious but more influential students and greater
emphasis was required to be laid on the merit of the
students seeking admission. In para 59 of the judgment of
Kirpal, CJ. in T.M.A. Pai Foundation (supra) quoted above, it
has been further made clear that merit is to be determined
for admission to professional colleges, by either the marks
that the student obtains at the qualifying examination, or
by a common entrance test conducted by the institution, or
in the case of professional colleges, by government agencies.
20. The judgment in T.M.A. Pai Foundation (supra) has
been further explained by this Court in P.A. Inamdar (supra)
and it has been held therein that that non-minority unaided
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institutions, like the minority unaided institutions, have
also the unfettered fundamental right to choose the
students to be allowed admission and the procedure
therefor but the admission procedure so chosen by the
institution must be fair, transparent and non-exploitative.
Para 137 of the judgment of this Court in P.A. Inamdar
(supra), which is relevant for deciding this case, is quoted
hereinbelow:
“137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admission procedure so adopted by private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own
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procedure. The second question is answered accordingly.”
Thus, in para 137 of the judgment in P.A. Inamdar (supra)
quoted above, this Court has taken the view that all
institutions imparting same or similar professional
education can join together for holding a common entrance
test satisfying the triple tests of the admission procedure
being fair, transparent and non-exploitative.
21. Keeping in mind the aforesaid law laid down by this
Court in T.M.A. Pai Foundation and P.A. Inamdar (supra), we
may now examine the admission procedure adopted by the
College for admitting the students to the MBBS seats for the
academic year 2008-2009. The College has admitted 16
students from the list of candidates selected in the PC-PMT
2008 conducted by the Federation of Private Medical and
Dental Colleges of Rajasthan. The PC-PMT 2008 conducted
by the Federation of Private Medical and Dental Colleges of
Rajasthan did not call for any applications from candidates
for admission to the MBBS course, but only for the BDS
course. Moreover, the College had not been included in the
brochure published for PC-PMT 2008 conducted by the
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Federation of Private Medical and Dental Colleges of
Rajasthan. Consequently, students, who may be interested
not in the BDS course but in the MBBS course, could not
have applied to take the PC-PMT 2008 conducted by the
Federation of Private Medical and Dental Colleges of
Rajasthan. As a result, many meritorious students desirous
of taking admission in the MBBS course in the College
could not get an opportunity to participate in the PC-PMT
2008 conducted by the Federation of Private Medical and
Dental Colleges of Rajasthan. The admission procedure
adopted by the College was thus not fair and transparent
and fell short of the triple tests laid down in P.A. Inamdar
(supra) and such admission procedure was not within the
fundamental right of the College to admit students of its
choice under Article 19(1)(g) of the Constitution of India as
explained in T.M.A. Pai Foundation (supra).
22. The stand of the College, however, is that the College
had published an advertisement dated 26.09.2008 inviting
applications from all the eligible candidates who had passed
the 10+2 examination with minimum 50% marks in
Physics, Chemistry and Biology individually in all the
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subjects and having English as compulsory subject for
admission to its MBBS course and in response to such
advertisement, students had applied and selection of
students was done on the basis of their merits. It is,
however, not disputed that the candidates, who had applied
in response to the advertisement, had not passed the 10+2
examination from the same board or university but from
different boards and universities. If that be so, the merit of
the candidates who had applied in response to the
advertisement could not be evaluated by a uniform standard
and could only be evaluated by a competitive entrance
examination of all these students who had applied pursuant
to the advertisement of the College. It is not the case of the
College that any competitive entrance examination of all the
students, who had applied pursuant to the advertisement,
was held by the College to determine their comparative
merit. Hence, the principle of merit as the basis for
selection for admission in the profession courses laid down
by this Court in T.M.A. Pai Foundation (supra) and as
explained in P.A. Inamdar (supra) has not been followed.
Thus, even as per the law laid down by this Court in T.M.A.
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Pai Foundation and P.A. Inamdar (supra), the College has
not been able to establish that the admissions of 117
students to its MBBS course for the academic year 2008-
2009 were within its right under Article 19(1)(g) of the
Constitution.
23. Moreover, the College was bound to follow the MCI
Regulations while making the admissions to the MBBS
seats. The permission letter dated 16.09.2009 stipulated
that the admission process for the academic year 2008-
2009 has to be completed within the time schedule
indicated in the MCI Regulations. Hence, even if the College
was required to complete the admission process by
30.09.2008, it could not violate the MCI Regulations on the
ground that it had to complete the admission process by
30.09.2008. Clauses (1), (2), (3) and (4) of the Regulation 5
of the MCI Regulations which deal with the principle of
merit as the sole basis for selection of candidate for
admission to a medical college are quoted hereinbelow:
“5. Selection of Students: The selection of students to medical college shall be based solely on merit of the candidate and for determination of the merit, the following criteria be adopted uniformly throughout the country:
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(1) In states, having only one Medical College and one university/board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration;
(2) In states, having more than one university/ board/ examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies;
(3) Where there are more than one college in a state and only one university/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges;
(4) A competitive entrance examination is absolutely necessary in the cases of institutions of All India character;”
It will be clear from the provisions of Regulation 5 quoted
above that the selection of students to medical college is to
be based solely on merit of the candidate and for
determination of the merit, the criteria laid down in Clauses
(1), (2), (3) and (4) will apply. Clause (2) of Regulation 5 on
which the MCI relied upon clearly states that in States
having more than one University/Board/Examining Body
conducting the qualifying examination a competitive
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entrance examination should be held so as to achieve a
uniform evaluation as there may be variation of standards
at qualifying examinations conducted by different agencies.
As we have noted, it is not the case of the College that all
students who applied pursuant to the advertisement had
passed 10+2 Examinations conducted by one and the same
University/Board/Examining Body. Hence, the merit of the
students who had applied pursuant to the advertisement of
the College had to be uniformly evaluated by a competitive
entrance examination, but no such competitive entrance
examination had been held by the College between all the
candidates who had applied pursuant to the advertisement.
Therefore, there was a clear violation of Clause (2) of
Regulation 5 of the MCI Regulations in admitting the 101
students to the MBBS Course for the academic year 2008-
2009 by the College.
24. The contention on behalf of the respondents is that
once it is held by the court that the admissions of 117
students in the MBBS course of the College was in violation
of Regulation 5 of the MCI Regulations, the court will have
to declare the admissions as invalid and the students
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admitted have to be discharged from the MBBS course. In
support of this contention three decisions of this Court have
been cited on behalf of the respondents. We may now
examine these three decisions. In A.P. Christians Medical
Educational Society v. Government of Andhra Pradesh & Anr.
(supra), the appellant-society had admitted students to the
medical college, which was a minority institution, in the 1st
year MBBS course without fulfilling the conditions for
running a medical college and in total disregard of the
provisions of the A.P. Education Act, the Osmania
University Act and the Regulations of the Osmania
University. The appellant-society challenged the State
Government's refusal to grant permission in a writ petition
before the High Court but the writ petition was dismissed
and appeal by way of special leave was filed before this
Court by the appellant-society and a writ petition was also
filed before this Court by the students who had been
admitted to the medical college. This Court while
dismissing the appeal as well as the writ petition held that
the Court cannot issue directions to the university to
protect the interests of the students who had been admitted
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to the medical college as that would be in clear
transgression of the provisions of the University Act and the
Regulations of the University. The College in this case has
been granted permission letter to establish a medical college
after the MCI and the Central Government found the College
to have satisfied the required conditions. Hence, the
decision of this Court in A.P. Christians Medical Educational
Society v. Government of Andhra Pradesh & Anr. (supra) also
does not apply to the facts of this case.
25. In Regional Officer, CBSE v. Ku. Sheena Peethambaran
& Ors. (supra), a student had to pass Class IX Examination
to be eligible to appear in Class X Examination conducted
by the CBSE as per the conditions under the relevant Bye-
laws of the CBSE. The respondent in that case filled up the
form for High School Examination but the same was
withheld by the school authorities on the ground that she
had not cleared her Class IX Examination. She filed a writ
petition in the High Court contending that she had been
promoted to Class X but was later on declared failed in
Class IX Examination. The High Court entertained the writ
petition and passed an interim order permitting her to take
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the Class X Examination conducted by the CBSE and finally
directed the CBSE to declare her result of the Class X
Examination. The CBSE challenged the decision of the High
Court before this Court and on these facts the Court held
that the High Court could not have condoned the lapses or
overlooked the legal requirements in consideration of mere
sympathy factor as it disturbs the discipline of the system
and affects the academic standards. In Visveswaraiah
Technological University & Anr. v. Krishnendu Halder & Ors.
(supra), the respondents secured marks which were more
than the minimum marks prescribed by the AICTE norms,
but less than what were prescribed by the University
Regulations and they were admitted to the Bachelor of
Engineering course during the academic year 2007-2008.
When the list of admissions was submitted by the colleges
to the university for approval, the university refused to
approve their admissions on the ground that they had
secured less than the minimum percentage required for
being eligible to admissions. Two students filed writ
petitions before the High Court but the learned Single Judge
dismissed the writ petition. In appeal, the Division Bench of
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the High Court directed the university to approve the
admissions of the two students as they fulfilled the
eligibility criteria fixed by the AICTE. The university filed
appeal before this Court and this Court held that once the
power of the State and the examining body to fix higher
qualifications higher than the minimum suggested by the
AICTE is recognized, the rules and regulations made by the
State and the university will be binding and will be
applicable in respect of States, unless AICTE itself
subsequently modifies its norms by increasing the eligibility
criteria beyond those fixed by the university and the State.
This Court observed in para 17, which is quoted
hereinbelow:
“17. No student or college, in the teeth of the existing and prevalent rules of the State and the University can say that such rules should be ignored, whenever there are unfilled vacancies in colleges. In fact the State/University, may, in spite of vacancies, continue with the higher eligibility criteria to maintain better standards of higher education in the State or in the colleges affiliated to the University. Determination of such standards, being part of the academic policy of the University, are beyond the purview of judicial review, unless it is established that such standards are arbitrary or `adversely affect' the standards if any fixed by the Central Body under a
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Central enactment. The order of the Division Bench is therefore unsustainable.”
26. Regulation 5 of the MCI Regulations, as we have seen,
deals with selection of students to medical college on the
basis of merit of the candidates and does not deal with the
eligibility of students for admission to MBBS course. It is
Regulation 4 which lays down the “eligibility criteria” for
admission to the medical course and it provides that no
candidate shall be allowed to be admitted to the MBBS
course until: (i) he/she has completed the age of 17 years
on or before the 31st December of the year of admission to
the MBBS course and (ii) he/she has passed the qualifying
examination as stipulated therein. It is not the case of the
MCI that any of the 117 students, who had been admitted
to the MBBS course, do not fulfill the eligibility criteria as
laid down in Regulation 4 of the MCI Regulations. The case
of the MCI is that the provisions of clause (2) of Regulation 5
relating to selection on the basis of merit, as discussed
above, has been violated. There is, in our considered
opinion, a difference between a candidate not fulfilling the
eligibility criteria for admission to the MBBS course and a
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candidate who fulfils the eligibility criteria but has not been
admitted in accordance with the procedure for selection on
the basis of merit. In a case where a candidate does not
fulfill the eligibility criteria for admission to a course or for
taking an examination, he cannot ask the Court to relax the
eligibility criteria. But this is not what the appellants have
asked for in this case before us. Hence, the decisions of this
Court in Regional Officer, CBSE v. Ku. Sheena
Peethambaran & Ors. (supra) and Visveswaraiah
Technological University & Anr. v. Krishnendu Halder & Ors.
(supra) do not apply to the facts of this case.
27. In the facts of this case, the College was at fault in not
holding a competitive entrance examination for determining
the inter-se merit of the students who had applied to the
College for admission into the MBBS seats of the College in
accordance with clause (2) of Regulation 5 of the MCI
Regulations and in not following a transparent and fair
admission procedure and the 117 students who had been
admitted to the MBBS course in the College were not to be
blamed for these lapses on the part of the College. In
Chowdhury Navin Hemabhai & Ors. v. State of Gujarat &
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Ors. (supra), this Court has held that where the admissions
of the students took place due to the fault of rule-making
authority in not making the State Rules, 2008 in conformity
of the MCI Regulations, the students if discharged from the
MBBS course, will suffer grave injustice and this Court
should therefore exercise its power under Article 142 of the
Constitution to do complete justice between the parties and
allow the students to continue to study the MBBS course.
Similarly, in Deepa Thomas & Ors. v. Medical Council of
India & Ors. (supra) this Court held that since irregular
admissions were made by the colleges in violation of the
MCI Regulations due to mistake or omission in the
Prospectus issued by colleges, the students who have been
admitted should be allowed to continue the MBBS course
and passed orders accordingly in exercise of power under
Article 142 of the Constitution. We are, thus, of the view
that the 117 students, who have been admitted in the
MBBS course by the College for the academic year 2008 in
violation of clause (2) of Regulation 5 of the MCI
Regulations, should not be disturbed.
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28. The fact, however, remains, that the College had
violated clause (2) of Regulation 5 of the MCI Regulations in
making the admissions of 117 students to the MBBS course
for the academic year 2008-2009 and the admissions were
not within the right of the College under Article 19(1)(g) of
the Constitution as explained in T.M.A. Pai Foundation and
P.A. Inamdar (supra). The College must, therefore, suffer
some penalty as a deterrent measure so that it does not
repeat such violation of the MCI Regulations in future.
Moreover, if no punitive order is passed, other colleges may
be encouraged to violate the MCI Regulations with impunity.
In Deepa Thomas & Ors. v. Medical Council of India & Ors.
(supra), this Court directed the College to surrender seats
equal to the number of irregular admissions in phased
manner starting with the admissions of the year 2012. In
the present case, there were as many as 117 admissions
contrary to the provisions of clause (2) of Regulation 5 of the
MCI Regulations. The learned Single Judge of the High
Court had directed ten seats to be kept vacant for the
academic year 2008-2009 and we are told that those ten
seats kept vacant have not been filled up and the College
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has not received any fees for the ten seats. Excluding these
ten seats, the College will have to surrender 107 seats in a
phased manner, not more than ten seats in each academic
year beginning from the academic year 2012-2013. These
107 seats will be surrendered to the State Government and
the State Government will fill up these 107 seats on the
basis of merit as determined in the RPMT or any other
common entrance test conducted by the State Government
or its agency for admissions to Government Medical
Colleges and the fees of the candidates who are admitted to
the 107 seats will be the same as fixed for the Government
Medical Colleges.
29. The 117 students, who were admitted to the MBBS
course, may not be at fault if the College did not hold a
competitive entrance examination for determining the inter
se merit of students who had applied to the College in the
MBBS seats of the College, but they are beneficiaries of
violation of clause (2) of Regulation 5 of the MCI Regulations
by the College. They have got admission into the College
without any proper evaluation of their merit vis-à-vis the
other students who had applied but had not been admitted
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in a competitive entrance examination. We have held in
Priya Gupta v. State of Chhattisgarh & Ors. [2012 (5) SCALE
328 = JT 2012 (5) SC 102] that beneficiaries of admissions
made contrary to the MCI Regulations must pay some
amount for development of infrastructure in the medical
college of the government as a condition for allowing them
to continue their MBBS studies by our orders under Article
142 of the Constitution. We, therefore, hold that each of the
117 students who have been admitted in the MBBS seats in
the College will pay Rs.3 lacs to the State Government on
account of their admission in violation of clause (2) of
Regulation 5 of the MCI Regulations and the total amount
received by the State Government from the 117 students
will be spent for improvement of infrastructure and
laboratories in the Government Medical Colleges of the State
and for no other purpose.
CONCLUSIONS
30. We accordingly hold:
(i) that there was no agreement between the College
and the State Government to admit students into its
MBBS course on the basis of RPMT-2008 and the
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finding of the High Court in this regard is erroneous
and the High Court could not have directed the
College to fill up its seats on the basis of merit of
students as determined in RPMT-2008 as per the
law laid down in T.M.A. Pai Foundation as explained
in P.A. Inamdar (supra). Hence, the direction of the
High Court to fill up the seats by students selected
or wait listed in the RPMT-2008 is set aside.
(ii) The admissions of 117 students to the MBBS course
for the academic year 2008-2009 in the College were
contrary to clause (2) of Regulation 5 of the MCI
Regulations and were not within the right of the
College under Article 19(1)(g) of the Constitution as
explained by this Court in T.M.A. Pai Foundation
and P.A. Inamdar (supra).
(iii) In exercise of our power under Article 142 of the
Constitution, we direct that none of the 117
students who were otherwise eligible for admission
to the MBBS course will be disturbed from pursuing
their MBBS course, subject to the condition that
they will each pay a sum of Rs.3 lacs within a period
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of three months from today to the State Government
and in the event of default, the students will not be
permitted to take the final year examination and the
admission of the defaulting students shall stand
cancelled and the College will have no liability to
repay the admission fee already paid. The amount
so paid to the State Government shall be spent by
the State Government for improvement of
infrastructure and laboratories of the Government
medical college of the State and for no other
purpose.
(iv) The College which was responsible for making the
admissions in violation of clause (2) of Regulation 5
of the MCI Regulations will surrender 107 (117 – 10)
MBBS seats to the State Government phase wise,
not more than ten in any academic year beginning
from the academic year 2012-2013 and these
surrendered seats will be filled up by the students
selected in RPMT or any other common entrance
test conducted by the State Government of
Rajasthan or its agency for admissions to the
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Government Colleges and the fees payable by the
students admitted to the surrendered seats would
be the same as that payable by the students of
Government Colleges.
(v) The results of the students in the MBBS course held
up on account of interim orders passed by the Court
may now be published.
The impugned judgment of the High Court is modified
accordingly and the appeals are allowed to the extent as
indicated in this judgment. The pending I.A. Nos. 3 and 4
stand disposed of.
CIVIL APPEAL NO._6210_OF 2012 (Arising out of SLP (C) No.24967 of 2011) AND CIVIL APPEAL NO. 6211 OF 2012 (Arising out of SLP (C) No.25353 of 2011):
Leave granted. I.A. No.2 of 2011 in Civil Appeal
arising out of SLP(C) No. 24967 of 2011 for deletion of the
proforma respondent Nos.5 to 19 is allowed. I.A. No. 3 of
2011 in Civil Appeal arising out of SLP(C) No. 25353 of 2011
for deletionof the proforma respondent Nos. 4 to 18 is
allowed.
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2. These are appeals by way of special leave under Article
136 of the Constitution of India against the common order
dated 10.08.2011 passed by the Division Bench of the
Rajasthan High Court in DB Special Appeal (Writ) No.632 of
2011 and DB Special Appeal (Writ) No.407 of 2011.
FACTS
3. The facts very briefly are that by a consensual
arrangement between the State Government of Rajasthan
and Mahatama Gandhi Medical College and Hospital (for
short ‘the College’) 85% of the MBBS seats in the College are
filled up by the allocation of students by the Competent
Authority. The Competent Authority, namely, the Convener
of the Central Under-Graduate Admission Board (for short
‘the Convener’) by his letter dated 31.07.2008 to the
Principal of the College allotted 85 students who had been
selected in the Rajasthan Pre-Medical Test 2008 (for short
‘the RPMT-2008’) for admission to the payments seats of the
College. Thereafter, by another letter 30.08.2008, the
Convener sent to the College a list of re-
shuffled/allotted/wait-listed students for admission in the
MBBS seats in the College. In this letter dated 30.08.2008,
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it was stated that the last date of joining the course for the
students so allotted would be 11.09.2008 and the list of
vacancies which are not filled up shall be displayed on the
notice board of the College on 12.09.2008 and the students
from the wait-list will be admitted to the vacancies and this
must be completed by 18.09.2008. On 25.09.2008, the
Convener sent another letter dated 25.09.2008 to the
College enclosing therewith a list of candidates who had
been selected/re-shuffled for the MBBS Course for the year
2008 in the extended second round of counselling and it
was stated in this letter that the last date of joining the
course for these students would be 27.09.2008 and the list
of vacancies shall be displayed on the notice board of the
College on 28.09.2008 at 10.00 a.m. and the students shall
be admitted from the wait-list into the vacancies and such
admission process must be completed by 30.09.2008. On
29.09.2008, the Additional Principal of the College issued
an office order that the residual seats which remained
vacant even after the second round of counselling will be
filled up by an admission process which will start on
30.09.2008 at 6.00 p.m. in the Medical Education Unit of
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the College and in such admission process preference will
be given to candidates who have qualified in the RPMT-2008
and if the seats are still vacant, the same will be offered to
candidates on the basis of 10+2 marks and the admission
process will be completed on the same date i.e. 30.09.2008.
Accordingly, on 30.09.2008, an admission notice for the
year 2008-2009 was put up by the College inviting
applications for admission to the MBBS Course for the year
2008-2009 from students who have passed 10+2
examination with minimum 50% marks in Physics,
Chemistry and Biology in case of general candidates and
minimum of 40% marks in Physics, Chemistry and Biology
for SC/ST/OBC candidates as per the guidelines of the
Medical Council of India (for short ‘the MCI’) and it was
stated in the admission notice that RPMT-2008 candidates
will be given preference. Pursuant to this admission notice,
a total of 21 students were admitted to the unfilled seats in
the MBBS Course for the academic year 2008-2009 in the
College. Out of these 21 students, 15 students had been
selected in the RPMT-2008 and 6 students had not been
selected in the RPMT-2008.
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4. Thereafter, these 21 students filed S.B. Civil Writ
Petition No.2946 of 2010 in the Rajasthan High Court and
their case in the writ petition was that pursuant to the
admission notice dated 30.09.2008 they applied for
admission to the MBBS Course in the college and they were
given admission and they deposited the fees and started
pursuing studies in the MBBS Course in the college, but
they were not allowed to take the examinations by the
authorities. The learned Single Judge of the High Court
found that the MCI had issued an order dated 04.02.2010
directing the college to discharge the 6 students who had
not been selected in the RPMT-2008 on the ground that
they had been admitted to the MBBS Course in violation of
Regulation 5 of the Medical Council of India Regulations
1997 (for short ‘the MCI Regulations’). By order dated
18.03.2011 the learned Single Judge of the High Court
allowed the writ petitions of 15 students who had qualified
in the RPMT-2008 but dismissed the writ petitions of the 6
students who were discharged pursuant to the order dated
04.02.2010 of the MCI on the ground that they had not
been selected in the RPMT-2008. Aggrieved, the 6 students
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and the College filed D.B. Special Appeal No.407 of 2011
and D.B. Special Appeal (Print) No.632 of 2011 but by the
impugned order, the Division Bench of the High Court has
dismissed the appeals. Aggrieved, the 6 students and the
College have filed these civil appeals.
CONTENTIONS ON BEHALF OF THE APPELLANTS :
5. Mr. Maninder Singh and Mr. P.S. Narsimha, learned
counsel appearing for the appellants, submitted that the
admission of the 6 students in the College were earlier
challenged in three writ petitions by students who had
qualified in the RPMT-2008 namely, Miss Divya Gupta, Miss
Heena Soni and Mr. Mohd. Zibran and in these writ
petitions (S.B. Civil Writ Petition No.13419 of 2008, S.B.
Civil Writ Petition No.10350 of 2008 and S.B. Civil Writ
Petition No.11165 of 2008), the MCI was also a respondent
and by a common order dated 26.05.2009 the learned
Single Judge disposed of the three writ petitions with the
direction that the three writ petitioners will be admitted in
the MBBS (First Year Course) against 15% Management
Quota for the academic year 2009-2010 and the writ
petitioners will be charged fees which are charged to the
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students admitted on the basis of their merit against 85% of
the seats to be filled up by the Competent Authority of the
State Government and these admissions will be within the
annual intake strength as approved by the MCI. They
submitted that by the order dated 26.05.2009 passed in the
earlier three writ petitions, the admission of the 6 students
were not disturbed by the learned Single Judge of the High
Court. They argued that the order dated 26.05.2009 of the
learned Single Judge in the three writ petitions of 2008 has
become final and the MCI therefore could not have passed
the order dated 04.02.2010 discharging the 6 students from
the MBBS Course on the ground that they have not been
selected in the RPMT-2008.
6. Learned counsel for the appellants further submitted
that the only reason given by the MCI in its order dated
04.02.2010 for discharging the 6 students was that they
have not passed the RPMT-2008 but the Secretary of the
MCI in his letter dated 16.09.2009 had clarified that for the
purpose of completing the admissions within the time
schedule fixed by this Court in the case of Mirdul Dhar and
Another vs. Union of India and Others [(2005) 2 SCC 65], i.e.
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30th September of the year, admissions could also be done
on the basis of marks secured in the 10+2 examination as
provided in Regulation 5(1) of the MCI Regulation. They
submitted that since the 6 students have been given
admission on the last date of the time schedule for the
purpose of filling up the unfilled seats of MBBS Course,
these admissions on the basis of their marks in 10+2
examination are in accord with Clause (1) of Regulation 5 of
the MCI Regulations.
7. The learned counsel for the appellants finally
submitted that it is not the case of the MCI that the 6
students did not fulfill the eligibility criteria for admission to
the MBBS course as provided in Regulation 4 of the MCI
Regulation. They submitted that all the 6 students satisfied
the eligibility criteria as they were above 17 years and had
also passed the qualifying examinations. They argued that
the case of the MCI was that clause (2) of Regulation 5 of
the MCI Regulations has been violated and for such
violation, if any, the 6 students who have been pursuing
their MBBS course since 2008 should not be disturbed.
They argued that this is, therefore, a fit case in which this
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Court in exercise of its powers under Article 142 of the
Constitution should protect the admission of the 6
students. They cited the judgment in Rajendra Prasad
Mathur v. Karnataka University and Another (1986 Supp.
SCC 740) in which this Court has held that though the
appellants were not eligible for admission to the Engineering
degree course and had no legitimate claim to such
admission, the blame for the wrongful admission lie more
upon the Engineering College and, therefore, the appellants
must be allowed to continue their studies in the respective
Engineering Colleges in which they were granted admission.
They also relied upon the decision of this Court in A. Sudha
v. University of Mysore and Another [(1987) 4 SCC 537], in
which it was similarly held that though the appellant was
not eligible for admission in the first year MBBS course of
the Mysore University, the appellant was innocent and
should not be penalized by not allowing her to continue her
studies in the MBBS course. They also relied on the
observations of this Court in Association of Management of
Unaided Private Medical and Dental College v. Pravesh
Niyantran Samiti and Others [(2005) 13 SCC 704] that in a
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medical college no seat should be allowed to go waste and
contended that if no student of the RPMT-2008 was
available for admission to the unfilled seats on the last date
of admission, the College had no option but to fill up the
seats by six students on the basis of their marks in the
10+2 Examination. They also referred to the order in
Monika Ranka and Others v. Medical Council of India and
Others [(2010) 10 SCC 233] in which this Court after taking
note of the fact that the candidates who have secured less
than 50% marks in the entrance examination had been
admitted in MBBS course in the R.D. Gardi Medical College,
Ujjain, M.P., directed that their admissions should not be
disturbed and ordered to reduce from the management
quota for the year 2009-2010 the number of seats equal to
the number of irregular admissions.
CONTENTIONS ON BEHALF OF THE RESPONDENTS :
8. Mr. Amarendra Sharan, learned senior counsel
appearing for the MCI, on the other hand, submitted that
seats which remained vacant even after the second
counselling cannot be filled up in breach of the MCI
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Regulations. He submitted that in the present case the
High Court has clearly held that the admission of the 6
students was in violation of Clause (2) of Regulation 5 of the
MCI Regulations which requires that students could be
admitted on the basis of their merit as determined in
Competitive Entrance Examination. He vehemently argued
that since the Competitive Entrance Examination, namely,
RPMT-2008, was conducted by the State Government of
Rajasthan, the College could admit students to the MBBS
Course in the seats remaining vacant after second
counselling only from amongst the RPMT-2008 selected
candidates on the basis of their merit. He submitted that
this Court should not therefore disturb the impugned orders
of the learned Single Judge and the Division Bench of the
High Court. The learned counsel for the State adopted the
arguments of Mr. Sharan.
FINDINGS WITH REASONS :
9. We have considered the submissions of the learned
counsel for the parties and we do think that we can hold
that because of the order dated 26.05.2009 passed by the
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learned Single Judge of the High Court in S.B. Civil Writ
Petition Nos.13419 of 2008, 10350 of 2008 and 11165 of
2008, which had attained finality, the MCI could not have
issued the order dated 04.02.2010 discharging the six
students from the MBBS Course on the ground that they
had not been selected in the RPMT-2008 and that their
admissions were in breach of the provisions of clause (2) of
Regulation 5 of the MCI Regulations. We take this view
because we find on a reading of the order dated 26.05.2009
of the learned Single Judge of the High Court in the
aforesaid three writ petitions that the question as to
whether the admission of the six students was in breach of
clause (2) of Regulation 5 of the MCI Regulations was not in
issue in the aforesaid three writ petitions. The learned
Single Judge of the High Court has disposed of the three
writ petitions on the basis of a compromise between the writ
petitioners on the one hand, and the respondent nos. 4 and
5, on the other hand, and the compromise was that the
three writ petitioners would be granted admission in the
MBBS Course for the academic year 2009-2010. The
learned Single Judge of the High Court, however, has
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further directed that their admissions will be adjusted
against 15% management seats which are available to the
college and not against 85% seats which are to be filled
strictly on the basis of the merit list sent by the Convener
and that the students will be charged fee which is ordinarily
to be deposited by the students who are admitted on the
basis of their merit against 85% State quota seats and that
the admissions will be within the annual intake strength as
approved by the MCI. As the College has not produced the
pleadings before this Court in the three writ petitions to
show that an issue was raised before the learned Single
Judge of the High Court in the aforesaid three writ petitions
by the MCI that the admission of the 6 students was in
breach of clause (2) of Regulation 5 of the MCI
Regulations, the principles laid down in Section 11 of the
Code of Civil Procedure, 1908 relating to res judicata will
not apply. As a matter of fact, when the order dated
26.05.2009 was passed by the learned Single Judge of the
High Court in the aforesaid three writ petitions, the MCI
had no information that the six students had not been
selected in the RPMT-2008 and it was only in August, 2009,
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and thereafter that the MCI came to learn about the breach
of the provisions of Regulation 5 and accordingly MCI
issued orders to immediately discharge six students.
10. We cannot also accept the contention of the
appellants that the College could admit students on the
basis of marks obtained by them in the qualifying
examinations under Clause (1) of Regulation 5 of the MCI
Regulations. The College has relied upon the letter dated
16.09.2009 of the Secretary of the MCI clarifying that for
the purpose of completing the admissions within the time
schedule fixed by the Court as in the case of Mirdul Dhar
and Another vs. Union of India and Others (supra), i.e., 30th
September of the year, the admission to the MBBS course
could be done on the basis of marks secured in 10+2
Examination, as provided in Regulation 5(1) of the MCI
Regulations. But a reading of Regulation 5(1) of the MCI
Regulations quoted above would show that this provision
applies only in a State where one university or board or
examining body conducts the qualifying examination, in
which case, the marks obtained at such qualifying
examination may be taken into consideration. In the State
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of Rajasthan, there are more than one
university/board/examining body conducting qualifying
examination and therefore Regulation 5(1) of the MCI
Regulations does not apply. As the State of Rajasthan has
more than one University/Board/Examining Body
conducting qualifying examinations, clause (2) of Regulation
5 of the MCI Regulations, which provides that a competitive
entrance examination will have to be held so as to achieve a
uniform evaluation, will apply. The College, therefore, was
bound to hold a competitive entrance examination in
accordance with clause (2) of Regulation 5 of the MCI
Regulations or enter into a consensual arrangement with
the State Government to admit students on the basis of the
Competitive Entrance Examination conducted by the State
Government. This is exactly what the College has done. It
had entered into a consensual arrangement with the State
Government to admit students on the basis of merit as
determined in the RPMT-2008. In our considered opinion
therefore, the clarification in the letter dated 16.09.2009 of
the Secretary of the MCI that for the purpose of admissions
within the time schedule fixed by this Court, admission can
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also be made on the basis of marks secured in the 10+2
Examination as provided in Regulation 5(1) of the MCI
Regulations is not in accord with the fact situation in State
of Rajasthan. The admission of the six students by the
College to its MBBS Course on 30.09.2008 was, therefore,
in breach of clause (2) of Regulation 5 of the MCI
Regulations.
11. We are, however, of the view that in this case also, as
in the case of Geetanjali Medical College, the violation of
clause (2) of Regulation 5 of the MCI Regulations is by the
College. In this case also, as in the case of Geetanjali
Medical College, the case of the MCI is not that the six
students were not eligible for admission to the MBBS
Course in accordance with the eligibility criteria laid down
in Regulation 4 of the MCI Regulations, but that they have
not been selected in the RPMT-2008, which was the
competitive entrance examination conducted in accordance
with clause (2) of Regulation 5 of the MCI Regulations.
Moreover, in this case also, as in the case of Geetanjali
Medical College, the six students had got admission to the
MBBS course not on the basis of their merit determined in
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the RPMT-2008 in accordance with clause (2) of Regulation
5 of the MCI Regulations, but on the basis of their marks in
the 10+2 and thus they were beneficiaries of the violation of
clause (2) of Regulation 5 of the MCI Regulations.
12. Hence, for the reasons stated in our judgment in the
case of Geetanjali Medical College, we invoke our powers
under Article 142 of the Constitution and direct that the
admission of the 6 students in the MBBS Course will not be
disturbed subject to the condition that each of the 6
students pay to the State Government Rs.3 lacs for
development of infrastructure of government medical
colleges within a period of three months from today failing
which they will not be allowed to take the final MBBS
examinations and their admission will be cancelled.
Considering, however, the fact that the College has violated
the provisions of clause (2) of Regulation 5 of the MCI
Regulations, as a deterrent measure to prevent similar
breach of the MCI Regulations in future, we direct that the
College will surrender six seats in the MBBS course for the
academic year 2012-2013 to the State Government to be
filled up on the basis of the RPMT or any other common
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entrance test conducted by the State Government of
Rajasthan or its agency for admission to the MBBS Course
and the fee that will be payable by the students admitted to
the six seats will be the same as are payable by the students
admitted on the basis of RPMT or another common entrance
test conducted by the State Government or its agency. The
impugned orders of the High Court are modified accordingly
and the appeals are allowed to the extent as indicated in
this judgment. No costs.
13. Before we part with this case, we would like to
reiterate what we have held in paragraphs 30 and 31 of our
judgment in the case of Priya Gupta v. State of Chhattisgarh
& Ors. [2012 (5) SCALE 328 = JT 2012 (5) SC 102]:
“30. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and cannot be moulded to suit
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the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the above-stated principles. Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and esemplastically, the action that is necessary to ameliorate the process of selection. Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned,.
(i) The commencement of new courses or increases in seats of existing courses of MBBS/BDS are to be approved/recognised by the Government of India by 15th July of each calendar year for the relevant academic sessions of that year.
(ii) The Medical Council of India shall, immediately thereafter, issue appropriate directions and ensure the implementation and commencement of admission process within one week thereafter.
(iii) After 15th July of each year, neither the Union of India nor the Medical or Dental Council of India shall issue any recognition or approval for the current academic year. If any such approval is granted after 15th July of any year, it shall only be operative for the next academic year and not in the current academic year. Once the sanction/approval is granted on or before 15th July of the relevant year, the name of that college and all seats shall be included in both the first and
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the second counselling, in accordance with the Rules.
(iv) Any medical or dental college, or seats thereof, to which the recognition/approval is issued subsequent to 15th July of the respective year, shall not be included in the counselling to be conducted by the concerned authority and that college would have no right to make admissions in the current academic year against such seats.
(v) The admission to the medical or dental colleges shall be granted only through the respective entrance tests conducted by the competitive authority in the State or the body of the private colleges. These two are the methods of selection and grant of admission to these courses. However, where there is a single Board conducting the state examination and there is a single medical college, then in terms of clause 5.1 of the Medical Council of India Eligibility Certificate Regulations, 2002 the admission can be given on the basis of 10+2 exam marks, strictly in order of merit.
(vi) All admissions through any of the stated selection processes have to be effected only after due publicity and in consonance with the directions issued by this Court. We vehemently deprecate the practice of giving admissions on 30th September of the academic year. In fact, that is the date by which, in exceptional circumstances, a candidate duly selected as per the prescribed selection process is to join the academic course
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of MBBS/BDS. Under the directions of this Court, second counselling should be the final counselling, as this Court has already held in the case of Ms. Neelu Arora & Anr. v. UOI & Ors. [(2003) 3 SCC 366] and third counselling is not contemplated or permitted under the entire process of selection/grant of admission to these professional courses.
(vii) If any seats remain vacant or are surrendered from All India Quota, they should positively be allotted and admission granted strictly as per the merit by 15th September of the relevant year and not by holding an extended counselling. The remaining time will be limited to the filling up of the vacant seats resulting from exceptional circumstances or surrender of seats. All candidates should join the academic courses by 30th September of the academic year.
(viii) No college may grant admissions without duly advertising the vacancies available and by publicizing the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. Every effort has to be made by all concerned to ensure that the admissions are given on merit and after due publicity and not in a manner which is ex-facie arbitrary and casts the shadow of favouritism.
(ix) The admissions to all government colleges have to be on merit obtained in the entrance examination conducted by the nominated authority, while in the case of private colleges, the colleges
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should choose their option by 30th April of the relevant year, as to whether they wish to grant admission on the basis of the merit obtained in the test conducted by the nominated State authority or they wish to follow the merit list/rank obtained by the candidates in the competitive examination collectively held by the nominated agency for the private colleges. The option exercised by 30th April shall not be subject to change. This choice should also be given by the colleges which are anticipating grant of recognition, in compliance with the date specified in these directions.
31. All these directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and medical and dental colleges and the management of the respective universities or dental and medical colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions:-
a) Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court having jurisdiction over such Institution/State, etc.
b) The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules.
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We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant.
c) Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default.
d) There shall be due channelization of selection and admission process with full cooperation and coordination between the Government of India, State Government, Universities, Medical Council of India or Dental Council of India and the colleges concerned. They shall act in tandem and strictly as per the prescribed schedule. In other words, there should be complete harmonisation with a view to form a uniform pattern for concerted action, according to the framed scheme, schedule for admission and regulations framed in this behalf.
e) The college which grants admission for the current academic year, where its recognition/approval is granted subsequent to 15th July of the current academic year, shall be liable for withdrawal of recognition/approval on this ground, in addition to being liable to indemnify such students who are denied admission or who are wrongfully given admission in the college.
f) Upon the expiry of one week after holding of the second counselling, the unfilled seats from all quotas shall be deemed to have been surrendered in favour of the respective States and shall be filled
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thereafter strictly on the basis of merit obtained in the competitive entrance test.
g) It shall be mandatory on the part of each college and University to inform the State and the Central Government/competent authority of the seats which are lying vacant after each counselling and they shall furnish the complete details, list of seats filled and vacant in the respective states, immediately after each counselling.
h) No college shall fill up its seats in any other manner.”
.……………………….J. (A. K. Patnaik)
………………………..J. (Swatanter Kumar) New Delhi, August 30, 2012.