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 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
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 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 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 2008-2009 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 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 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
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
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 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.
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 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
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 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.
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
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 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
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 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 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 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.
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 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 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 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 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 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,
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 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,
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.
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.
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 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
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 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 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. 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:
(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 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 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 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 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
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
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 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 & 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.
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 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 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 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 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 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 for deletion of the proforma
respondent Nos.5 to 19 is allowed.
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, 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 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.
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 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 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. 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 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 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
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 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 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, 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 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 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 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 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 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 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 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 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. 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 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.
