Rajasthan High Court - Jaipur
Neha Choudhary D/O Shri Ammilal ... vs National Eligibility Cum Entrance Test on 20 August, 2018
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 18545/2018
Neha Choudhary D/o Shri Ammilal Choudhary , Aged About 21
Years, By Caste Jat, Resident Of Plot No. 91, Dronpuri Colony,
Girdharipura, 200 Ft. Bypass, Heerapura, Ajmer Road, Jaipur,
Rajasthan.
----Petitioner
Versus
1. National Eligibility Cum Entrance Test , UG Medical And
Dental Admission / Counseling Board - 2018 Through Its
Chairman, Sms Medical College And Attached Hospitals,
Jaipur.
2. Medical Council Of India Through Its Secretary , Pocket-
14, Sector-8, Dwarka, New Delhi-110077.
3. Central Board Of Secondary Education , National Eligibility
Cum Entrance Test Unit, Shiksha Kendra, 2, Community
Centre, Preet Vihar, Delhi-110092 Through Its Secretary.
----Respondents
S.B. Civil Writs No. 18546/2018 Suraj Bansal S/o Shri Bal Kishan Bansal , Aged About 19 Years, Resident Of Village Singorai, Tehsil Badi, District Dholpur (Raj.)
----Petitioner Versus
1. Union Of India Through The Secretary , Ministry Of Health And Family Welfare, New Delhi.
2. State Of Rajasthan Through The Principal Secretary , Medical Education Department, Government Secretariat, Jaipur.
3. The Medical Council Of India Through Its Secretary , Pocket-14, Sector-8, Dwarka Phase-I, New Delhi- 110077
4. National Eligibility Cum Entrance Test (Ug-2018) Through Director Neet , Central Board Of Secondary Education, Shiksha Kendra, 2, Community Centre, Preet Vihar, Delhi, 110092 (2 of 9) [CW-18545/2018]
5. The Principal And Controller , Sms Medical College, Jaipur
6. The Principal , Medical College Dungarpur (Raj.)
----Respondents For Petitioner(s) : Mr. Tanveer Ahamad Mr. JK Yogi For Respondent(s) : Mr. SK Gupta, AAG with Mr. YS Jadaun Mr. Angad Mirdha Mr Prakash Gupta, OIC is present in person HON'BLE MR. JUSTICE ALOK SHARMA Order 20/08/2018 Mr. Tanveer Ahmed and Mr. JK Yogi, counsel for the petitioners submitted that the Division Bench of the Delhi High Court in the case of Tanishq Gangwar & Ors. Versus Union of India & Ors. - WP (C) 6773/2018 has held that 'the category covered in Sr. No. (7) of the Clarification issued by MCI and the regulation {Regulation 4(2) (a)} to the extent it sets out the impugned disqualification, "Furthermore, study of Biology / Biotechnology as an additional subject at 10 + 2 level also shall not be permissible..." are hereby set-aside as discriminatory and arbitrary."
(3 of 9) [CW-18545/2018]
Counsel for the petitioners submitted that despite
having been successful in NEET, 2018 examination and having participated in the counselling for admission to MBBS Course and allotted Mahatma Gandhi Medical College, Jaipur and Medical College Dungapur, respectively by the UG Admission Board, on presentation before the said colleges, the petitioners were denied admission for reason of not fulfilling the requirement of Regulation 4(2)(a) of the Under Graduate Medical Regulations, 1997 (hereafter 'the Regulations of 1997') which now stands set-aside to the extent of requiring two years continuous study of biology etc. at the Sr. Secondary level.
Counsel relied upon the judgment of the Apex Court in the case of Kusum Ingots and Alloys Ltd. Versus Union of India (UOI) and Ors. (2004 (6) SCC 254) and submitted that positive order passed on a writ questioning the constitutionality of a Central Act in view of the provisions contained in Clause (2) of Article 226 of the Constitution of India will have effect throughout the territory of India. They further submitted that the offending regulation 4(2)(a) of the Regulations of 1997 leading to denial of (4 of 9) [CW-18545/2018] their admission by the Mahatma Gandhi Medical College and Medical College, Dungapur despite being allocated the said colleges by the NEET UG Medical and Dental Admission / Counselling Board, 2018 having been set aside by the Delhi High Court, the petitions be allowed. Counsel further relied upon the judgment of the Division Bench of the Madras High Court in the case of Dr. T. Rajakumari Versus The Government of Tamil Nadu & Ors. (W.P. Nos. 39022 and connected case No. 36735 of 2015) decided on 3rd August, 2016 and submitted that the Division Bench in the aforesaid judgment held that where a provision of a Central Act is declared ultra-vires by a High Court, that provision struck off would be inoperative across the length and breadth of the country until the judgment in issue were to be stayed by the Apex Court. And only in that eventuality the provision struck down would revive and be operative. Reference was made to para 4 of the aforesaid Division Bench judgment of the Madras High Court, which reads as under:-
"It is trite to say that once a High Court has struck down the provisions of the (5 of 9) [CW-18545/2018] Central Act, it cannot be said that it would be selectively applied in other States. Thus, there is no question of applicability of provisions struck down by the High Court as of now until and unless the Hon'ble Supreme Court upsets the judgment or stays the operation of the judgment."
Mr. SK Gupta, appearing for the NEET UG Medical and Dental Admission / Counselling Board, 2018 submitted that the judgment of Delhi High Court in Tanishq Gangwar (supra) itself has confined the benefits to the petitioners before the Court as also the applicants specifically named in para 29 thereof. It was submitted that a challenge to the very regulation 4(2) (a) of the Regulations of 1997 which has been struck of as discriminatory and arbitrary by the High Court is pending before this Court in D.B. Writ Petition No. 14547/2018 and judgment thereon is awaited. Mr. SK Gupta further submitted that in S.B. Civil Writ Petition No. 14885/2018 - Savita Bhadu Versus Union of India & Ors., this Court had dismissed petitions whereby the petitioner was seeking admission into MBBS Course, 2018 despite having not studied the subject of Biology etc. for two continuous years at the (6 of 9) [CW-18545/2018] Sr. Secondary level. Mr. SK Gupta then submitted that whether the candidate had written the examination of biology after passing the Sr. Secondary examination successfully, in the subsequent year or whether he/she had re-written the Sr. Secondary Examination on the whole afresh alongwith the subject of biology in the following year is of no event as in both the situations the requirement of two years continuous study with biology under regulation 4 (2)(a) of the Regulations of 1997 would be absent.
Mr. Angad Mirdha appearing for the MCI submitted that the judgment of the Division Bench of the Delhi High Court in Tanishq Gangwar (supra) is under challenge before the Apex Court and the SLP is likely to be listed in a couple of days. He submitted that the petitioner in D.B. Civil Writ Petition No. 14547/2018 before this Court was unable to persuade this Court to pass any interim order and that is reflective of the Court prima-facie finding no merit in the petition.
Heard. Considered.
The Delhi High Court in Tanishq Gangwar (supra) has declared Regulation 4(2)(a) of the Regulations of 1997 as ultra-
(7 of 9) [CW-18545/2018] vires, discriminatory and arbitrary. Indeed the Division Bench of the Delhi High Court has in its judgment aforesaid observed that the petitioners as also the applicants in CM 29675/2018 i.e. Govind Yadav, Ms. Kiran, Mahesh Ranwa, Harkesh Poonia and Savita Bhadu who appeared in NEET , 2018 and qualified in the entrance examination and were also successful during counselling, would be entitled to be granted admission into MBBS 2018. However, I am afraid that reading of para 29 of the aforesaid judgment does not prima-facie entail a conclusion that regulation 4(2)(a) of the Regulations of 1997 despite being struck down as discriminatory and arbitrary would yet be operative in respect of other students not before the Delhi High Court. Such a conclusion at the interim stage of this petition is inconceivable as two separate regimes under the Regulations of 1997 cannot be countenanced.
The Madras High Court in the case of Dr. T. Rajakumari (supra) has very categorically held that where a provision of a Central statute has been declared ultra-vires and struck off, that provision would be inoperative through the territory of India. The (8 of 9) [CW-18545/2018] view of this Court in the case of Savita Bhadu (supra) was in the context where regulation 4(2)(a) of the Regulations of 1997 had not been struck down as arbitrary by a High Court.
The First and second round conselling for the State quota seats has since been completed, admission to colleges allotted made and the mop up round for admissions to the remainder seats is to be held on 21 st and 22nd August, 2018. In the event the seats which the petitioners were allocated by the UG Medical And Dental Admission / Counseling Board - 2018 but were not allowed to avail admission to by the respective medical colleges, were to be filled up, (in the circumstances presently obtaining with the offending part of Regulation 4(2)(a) of the Regulations of 1997, having been struck down by the Delhi High Court), it would leave the petitioners without any recourse and remedy. In this view of the matter, I am of the considered view that in the interim the petitioners and others alike them who have been allotted Medical Colleges by UG Medical And Dental Admission / Counseling Board - 2018 but where not admitted by the respective medical colleges for reason of regulation 4(2)(a) of (9 of 9) [CW-18545/2018] the Regulations of 1997 should not be allowed to be irrevocably prejudiced which they would be if the seats allocated to them by the UG admission board 2018 were to be treated as vacant and filled up in the mop up round for admissions to MBBS being conducted on 21st and 22nd August, 2018. Consequently, it is directed that the seats allotted to the petitioners and those similarly placed by the UG admission Board, 2018 not be reckoned for in the mop up round counselling to be held on 21 st and 22nd August, 2018 and be kept vacant till the next date.
Put up on 25th August, 2018, as prayed.
A copy of this order be placed in connected file and a copy whereof be supplied to Mr. SK Gupta counsel for UG admission Board, 2018 for onward transmission and compliance.
(ALOK SHARMA),J DK Powered by TCPDF (www.tcpdf.org)