TaxTMI 
TaxTMI 
2013 (3) TMI 137
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....emic 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dmitted 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 admiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....trance 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 Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fessional 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 advertiseme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....acts 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 &....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 candida....
X X X X Extracts X X X X
X X X X Extracts X X X X
....il 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egitimate 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 Ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at 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 Gover....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hird 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 co....