Rajasthan High Court - Jaipur
Mahatama Gandhi National Institute Of ... vs State Of Rajasthan And Ors. on 23 April, 2002
Equivalent citations: RLW2003(2)RAJ884
JUDGMENT Madan, J.
1. Mahatma Gandhi National Institute of Medical Sciences (MGNIMS) (for short, petitioner institute) has sought an appropriate writ inter alia for (1) setting aside order dated 7.11.2001 (Ann. 17) having been passed upon counselling conducted on 2.11.2001 and thereby further directing the respondents to fill up remaining vacancies as per waiting list prepared after conducting admission exercise on 28.9.2001; (2) declaring that Principal of the petitioner Institute is entitled to be included in the Central UG Admission Board for admission in the medical colleges in future courses and (3) holding that the University, State Government so also Central UG admission Board are bound to follow the Medical Council of India Regulations (for brevity declaring cut off date as laid down in Unni Krishnan's case (1), and consequently for directing the respondents to complete all Central UG admission exercise with three months after declaration of the result so as to complete medical courses within four & half years in future.
2. The petitioner is a Mahatama Gandhi National institute of Medical Sciences (for brevity "petitioner Institute") and is a first private medical college in Rajasthan. Only by letter dated 24.8.2001 (Ann.1) sent by the Director Ministry of health & Family Welfare Government of India New Delhi conveying approval of the Central Government to the Chairman & Managing Director Indian Education Trust Jaipur as to the establishment of a new medical college in the name & style of the petitioner Institute with an intake of 100 (one hundred) students with prospective effect from the academic year 2001-02 under Section 10A of the Indian Medical Council Act, 1956 (for short "MCI act"). This permission Under Section 10A of the MCI Act was accorded by the Central Government for establishment of the College and admission of students initially for one year subject to renewal on yearly basis on verification of achievement of annual targets set out in the project report. It was also made clear in the permission letter that the college shall not admit more than one batch of students against this permission and the college should apply to Medical Council of India (MCI) for renewal of permission well before commencement of next academic session; and that next batch of students shall not be admitted unless renewal of permission is granted by the Central Government. A copy of this permission letter was sent to the Secretary Health & Family Welfare Government of Rajasthan (respondent No. 1) and the Registrar University of Rajasthan, Jaipur (respondent No. 3). Pursuant to this permission, the Government of Rajasthan by its letter dated 27.8.2001 (Ann. 4) directed the Principal SMS Medical College (convenor of the Admission Board) respondent No. 2 & 4) for allotting 100 students to the petitioner Institute for their admission in MBBS course for academic session 2001-02 as the permission granted by the Central Government by letter dated 24.8.2001 (Ann.l). On 30.8.2001 the Registrar (respondent No. 3 University) conveyed permission (Ann.5) of the Vice Chancellor to allot provisionally one hundred students on 1st MBBS course in the petitioner Institute for academic year 2001-02 subject to grant of affiliation to it by the University subsequently according to the normal procedure & prevalent rules & regulations.
3. It is pertinently to state at the very outset that for the academic year 2001-02, though permission to the petitioner Institute for establishment of Medical College was granted by the Central Government on 24.8.2001 & the State Government on 27.8.2001 and by the University on 30.8.2001 but process of admission to this academic year in Five State Medical Colleges had already began much before it on 21 st to 24th May, 2001 when Pre-medical Tests were held and its result was declared on 15.7.2001 and notification was issued on 9.8.2001 (Annr.2) notifying counselling dates in between 27th to 31st August, 2001. Naturally for admission & allotment of 100 students in the petitioner Institute, notification was issued after having received grant of permission to it only after 27th of 30th August 2001. Hence notification was issued on 15.9.2001 (Ann.6) notifying date of counselling for admission & allotment of students in the petitioner Institute.
4. On a careful perusal of this counselling Notification of 15.9.2001 (Ann.6) it is clear that to all the successful students who have joined & continuing allotted MBBS/BDS course 2001 in different categories in all State Medical Colleges were given another opportunity by way of inviting their application & choice for admission in the petitioner Institute by way of re allotment/re shuffle and it was made specific that the petitioner institute was having 50 free seats for being filled up among SC/ST/OBC & General categories while 35 payment seats and these both the seats (free & Payment) were notified to be filled up on merit cum priority as per Ordinance 272 of the University of Raj as than.
5. A series of dates of events which had happened before the grant of permission (24.8.2001) have also been stated in the petition, viz. that consent of affiliation was given by the respondent No. 3 on 14.11.2000 (Ann.18A) subject to grant of permission by the Government of India Under Section 10A of the MCI Act on the prescribed form; that he informed the Governor of Rajasthan by his letter of 26.7.2001 (Ann. 18) that the MCI had already inspected & compliance report was given by the Institute and therefore it should be provided students from the first counselling so as to give fair chances to students to choose new medical college; that similar request as repeated in Ann. 18 was also made to the respondent No. 2 to include the petitioner Institute utongwith other State Medical Colleges; that the MCI sent a letter on 3.8.2001 to the Central Government recommending to issue letter of Intent for the new medical college (petitioner institute) which was issued by the Central Government on 14.08.2001 and consequently the petitioner Institute on 18.08.2001 again reiterated its claim for providing students, but curiously enough once out of 100 intake students, allotted by grant of permission of the Central Government on 24.8.2001 and by State Government on 27.8.2001 only after notification of 19.8.2001 notifying 1st counselling, the petitioner Institute has already admitted 81 students except vacant seats upon having been allotted by the respondent No. 2 these series of events do not render any help to the petitioner Institute in advancing its case for the controversy at issue in respect of 12 seats allotted under impugned order of 7.11.2001 (Ann. 17). Rather I do not deem it appropriate to enter into these events of dates earlier to the grant of permission as to the controversy to issue involved herein and suffice is to say that unless permission is granted by the Central Government Under Section 10A of the MCI Act, no private medical college can be held and/or deemed to have established its Institute, nor such an Institute can either be allowed to run or allot students for admission in the academic session.
6. Admittedly 81 students (50 free seats 31 payment seats as against total notified 85 seats) were allotted for admission in the petitioner Institute. Though as against four payment seats having remained vacant under Notification of 15.9.2001 (Ann.6) the petitioner Institute has made allegation of malafide against the respondent No. 2 & 4 but in reply it has been contended that since the petitioner Institute is a private medical college and vacancy is of payment seats causing enormous fees chargeable by it, the students were only interested in getting themselves admitted in six State Medical Colleges and once the respondents have no candidates opting for payment seats for admission in the petitioner Institute, therefore, the respondent Convenor had no option to allot no students on payment seats to it.
7. The petitioner Institute in its letter of 20.10.2001 (Ann.11) intimated catego-rywise vacancy position and out of total seven seats, five were free and two were payments seats. The Convenor (respondent No.2) issued Notification of 23.10.01 notifying one free seat of OBC male category, three free seats of General category and six payment seats as vacant in the petitioner Institute due to non-joining of the students within stipulated time, for being filled up on reallotment/reshuffling, to which the petitioner Institute protested by sending its requests one after the other (Ann. 13, Ann. 16). Though one of requests (Ann. 14) of the petitioner was that as per Ordinance 272 of the University, the principal of the petitioner institute be also allowed to participate in the counselling to be held by the UG admission Board on 2.11.2001 but the respondent No. 2 in his letter of 31.10.2001 (Ann. 15) respondent as under:-
"Please refer to the Ordinance of University of Rajas than Jaipur Education 2001-02 at page No. 10 under Heading, "Interview by Admission Board and Allotment of Place of Study", which reads as selection will be done by the Undergraduate Admission Board consisting of all the Principals/Representatives of the State Medical Colleges with Principal of SMS Medical College, Jaipur as its Convenor" and accordingly the members of the UG Admission Board have been invited to attend the UG Admission Board meeting to be held on 2.11.2001 and for which letters have already been sent to them. This is for your information."
8. The dispute arose when the respondent No. 2 issued order of 7.11.2001 (Ann. 17) by which six payment seats were filled up by allotting six students whose names find place at S.No. 17 & 19 to 23 whereas six students of different category were allotted free seats out of which one was of SC student as fresh allotment while other five free seats of different categorywise (whose names find place at S.No. 1 to G) were allotted by reshuffling their course from BDS JP to MBBS course. Now the decks are clear that this petition raises a dispute on allotment of 12 seats (six each of free & payment seats, ibid) to the petitioner Institute by order of 711.2001 (Ann.17) only. Hence this writ petition.
9. Not only in the reply to the writ petition but also at the threshold of arguments during the course of hearing, much stress was laid to the preliminary objection as to the maintainability of the petition, itself, for want of impleadment of necessary party viz. the students allotted or reshuffled under the impugned order of 7.11.2001 (Ann. 17). These students had also applied for imploding them as necessary party to the petition but this Court by its order dt. 6.12.2001 dismissed an application moved by Shri Virendra Lodha Keeping in view the fact that the petitioner Institute firstly admitted these 12 students provisionally inasmuch as their fees charged had already been refunded back and their admission was made by the respondent No. 2 subject to the decision of this petition. However, the applicants were given liberty to advance their arguments. Their rights had not created for admission by reshuffling or reallotment of the college rather the impugned order of admission was made subject to the outcome of this petition, hence the question of imploding these students as party respondent to this petition does not arise being not affected, inasmuch as their merit position was being shown only on the basis of documents annexed by them to their application for admission to medical course under the PMT 2001 by the respondents herein.
10. As regards the non-impleadment of the Medical Council of India as party to this petition, suffice is to say that since no relief is claimed by the petitioner Institute against its any action, I do not think that the MCI is necessary and affected party to this petition especially keeping in view the controversy at issue in respect of allotment of 12 seats under the impugned order of 7.11.2001 (Ann. 17). In this view of the matter, ratio of decendi in the decisions cited by the learned counsel for the respondents referred to herein below does not apply to the present case.
Re. Citations as nonjoinder of party
11. In Ishwar Singh vs. Kuldip Singh (2), selection and appointments were impugned in the writ petition without impleadmg & serving all the selected candidates but the "High Court held such impugned appointments as unfair and improper, hence the Apex Court held that the High Court was not justified in hearing the petition in the absence of the selected candidates when they had already been appointed. In State of Bihar vs. Kameshwar Prasad Singh (3), seniority and promotion was claimed in writ petition and the Apex Court held that in absence of persons likely to be affected by the relief prayed for, the writ petition should nor mally be dismissed unless there existed specific reasons for nori impleadment of the affected persons.
12. However, In the present case albeit the applicants seeking intervention (who have been declined to become party respondents to this petition) were allotted the petitioner College but they were not admitted rather amount of fees have been returned back to them, this decision (supra) is not applicable to the case advanced on behalf of the respondents. Preliminary objection raised for non-impleadment of necessary party is overruled.
13. Shri Dalip Singh has appeared in this petition on behalf of the University and as per reply of the University which has been reiterated at the time of hearing, the University is in no way connected with impugned admission of students as such responsibility solely lays with the Convenor of Central UG Admission Board (respondent No. 2) who was permitted by letter dated 30.8.2001 (Ann.5) to admit students for 1st year MBBS course to the petitioner institute for academic session 2001-02. Moreover, admission as per law is the domain of respondent No.2 therefore the University does not come in picture. However, in additional pleas the University admitted that according to Ordinance 272, last date of filling ap admission to the medical colleges had expired on 30.11.2001 being last date after 3 months from the date of initial selection which commenced on 31.8.2001. Hence much stress was also emphasized that calendar of medical education should be followed and consequent upon last date prescribed for admission by law, no admission should be given and therefore, no direction can be given to the respondent to fill up remaining vacancies as per the waiting list, because as per the University such a direction, itself, would be contrary to law (Ordinance 272).
14. This leads me to browse through the provisions contained in Ordinance 272 of the University. I must hasten to say that the controversy pertains to admission in the petitioner Institute which is a private medical college, therefore, firstly I must quote herein below relevant provisions incorporated by the University in its Ord. 272 by Notification No. 9 of the respondent University. Clause IIA newly added to Ord. 272 under heading "Admissions in MBBS Course at Private Medical Colleges" reads as under:-
1IA. As and when the Private medical Colleges are permitted by Central Government/Medical Council of India/State Government and affiliated with the University of Rajasthan:-
(1) Total number of seats in each such private medical colleges shall be as sanctioned to each of them by the Medical Council of India/Central Government.
(2) 15% seats - NRI seats, 50% free seats, and 35% payment seats out of total sanctioned seats.
(3) NRI seats are to be filled at respective college levels.
(4) Free and payment seats are to be filled by the UG admission Board on merit cum priority from the successful candidates of RPMT.
(5) Reservations on free seats of 16%, 12% and 21% for SC/ST/OBC respectively. The percentage of Girl candidates shall not fall below 25% out of the aforesaid reserved seats in each category of free seats including the Girl candidates admitted in the General category of free seats.
(6) There is no reservation on payment seats and are to be filled by the Central UG admission Board on merit cum priority from the successful candidates of RPMT.
(7) Fee structure for free/merit and payment seats in private medical colleges will be as notified by the State Government in view of letter No. MCI 34(41)2000-Med/dated 30.12.2000."
15. For the present controversy, significant and relevant clause of Ordinance 272 is Clause V which pertains to Interview by admission and Allotment of place of study. Its relevant paras are quoted as follows:
(i) The Selection will be done by the Under graduate Admission Board, consisting of all the Principals of the the State Medical College with Principal of SMS Medical College, Jaipur, as Us convenor.
(ii) Eligible candidates who have passed the State Pre Medical Test shall be called for interview by the Principal SMS Medical College and Convenor of the Under Graduate Admission Board to appear before the Under Graduate Admission Board, constituted by the State Government. The presence of the candidates of his/her authorised representative at interview is essential.
(iii) Interview and allotment of the College will be done within three weeks of declaration of the result of State Pre Medical Test.
(iv) Not relevant
(v) The Under Graduate Admission Board shall interview the candidates and allocate them College strictly on the basis of merit-curn preference list given in writing on or before the scheduled date. The candidates will be allowed to withdraw and submit a fresh preference list in writing at the time of his/her interview. The presence of the candidates of his/her authorised representative at interview is essential.
(vi) Not relevant (vii) Not relevant
(viii) The academic session should start within two weeks of allotment of College.
(ix) The last date of submitting vacancy position due to non joining of the allotted candidates within the stipulated time to the Convener shall be within 4 weeks of allotment of college.
(x) Re-allotment of vacancies will be done by the Under Graduate Admission Board on interview of the candidates within 14 days of the last date of submitting the vacancy position."
Para (xi) to Clause V of Ord. 272 was substituted by Para (xii) and before it new para as Para (xi) in the following form was added under aforesaid Notification No. 9 of the University: -
"(xi) The candidate is entitled for reappointment/reshuffling only if he has joined and continued the allotted courses and college, failing which his/her selection will be terminated.
(xii) The vacancies due to not joining of the candidates within the stipulated time shall be filled in by re allotment/re shuffle by the Central UG admission Board on the basis of merit cum preference from the candidates who have already joined the allotted course and Colleges and the resultant vacancies or such vacancies which could not be filled by reallotment, shall be filled by taking the candidates from the remaining merit list of the successful candidates of the Rajasthan PMT merit list on merit cum preference at the time of interview. The candidate can also give their names for waiting list for any vacancies to be created in future. No admission shall be given after three months from the date of initial selection, even if any vacancies occur subsequently."
16. As regards third relief seeking mandamus against the respondents to follow MCI Regulations for conducting admission & declaring cut off date and further to complete admission exercise within three months after declaration of the result so as to complete medical course within four & half years in future, I feel myself reluctant to issue any mandamus in this regard especially keeping in view specific provisions contained in Ordinance 272 of the University (supra) nor there are any circumstances for the academic session in question 2001-02 and for the Rajasthan PMT 2001 whose result was declared on 15.7.2001 and first counselling for selection admittedly took place on 31.8.2001 whereas the permission in favour of the petitioner Institute was accorded belatedly by the Central Government on 24.8.2001 hence the petitioner Institute has no case for such relief and even otherwise had there been adherence to strict compliance for academic session, I think, even after the permission of 24.8.2001, the petitioner Institute could not have been allotted students for admission for the academic session in dispute, because by the time it was accorded permission to establish the Medical College, all process of selection would have been complete.
17. Moreover the completion of medical course within four & half years totally depends upon the management of the medical colleges themselves and is totally within the domain of the college concerned by organising requisite teaching classes for respective semesters, training, conducting of terminal tests and annual examinations their results and similarly the academic session as per para (viii) of Clause V to Order 272 is supposed to start within two weeks of allotments of college. Thus unless allotment of college takes pace, how could the academic session commence. Hence no direction can be issued to the respondents for time bound completion of course and/or admission process by fixing any cut off date in view of stringent process of selection for admission as provided not only in Ordinance 272 but also in the MCI Regulations which are required to be complied with in letter and spirit.
18. As regards 2d relief as to entitlement of the petitioner Institute for participation in the admission in further for medical courses, it is the case of the petitioner Institute that the action of the respondents in not allowing its Principal to be a member of the Central UG Admission Board for the purpose of allotment of seats by way selection of the students for admission in its College, is malafide bad in law, and is contrary to the directions & guidelines of the Medical Council of India. I do not deem it appropriate to allow such a relief by virtue of provisions contained in para (i) of Clause V of Order 272 which provides that the selection will be done by the Undergraduate Admission Board consisting of all the Principals/Representatives of the State Medical Colleges with the principal of SMS Medical College Jaipur as its Convener. This provision envisages the participation of the Principals or their representatives only of State medical Colleges and not of private medical colleges, inasmuch as State medical colleges do not include private medical college and State medical College means Government Medical College. Thus prescription of inclusion of the Principal in the Central UG admission Board of the Constitution of such a Board is entirely within the competence and domain of the State Government obviously within the powers conferred under the MCI Act and/or Regulations.
19. I am fortified by the guidelines for admission of students to medical colleges as provided in the Medical Council of India (Norms & Guidelines for fees and Guide-lines for Admission in Medical Colleges) Regulations, 1994 (for short MCI admissions Regulations). Clauses 5 of MCI admissions-Regulations provides admission procedure. Its Sub-clause (a) provides that the number of seats for fresh admission shall be fixed by the appropriate authority in consultation with the Medical Council of India. Under Sub-clause (b) only the competent authority shall call for admission application to all seats available in private medical colleges alongwith admission applications to Govt./Uni-versity colleges of similar nature. Similarly under Sub-clause (d) it is the competent authority who shall prepare a merit list on the basis of a common entrance examination from amongst the successful candidates. Competent authority is defined in Clause 3(a) of the aforesaid Admission Regulations and according to which, competent authority means a Government or University or any other authority as may be designated by the Government or the University or by law to allot students for admission to various medical colleges in a state or Union Territory. Appropriate authority under Clause 3(b) means the Government, University or other authority as is competent to grant permission to establish or to grant recognition to a medical College. Therefore, the petitioner Institute has no merit in its case for grant of 2nd relief and such a relief is declined holding that the Principal of the petitioner Institute (i.e. private medical college) is not eligible for being included in the admission exercise held by the Central UG Admission Board and the action of the respondents for not allowing the petitioner Institute to be a member of the Admission Board in question is not bad in law nor contrary to the guidelines of the medical council of India. Further a private educational institution either by recognition or affiliation to the University could never be called as State Instrumentality.
20. Now I advert to the crucial issue on which the fate of this petition hinges. It is the case on behalf of the petitioner Institute that the respondent No. 4 deliberately withheld its name and therefore the students could not opt for the Institute and have been given admission in various other medical colleges. Next contention urged is that the list prepared for admission by the respondents under impugned order of 7.11.2001 (Ann.17) is defective and contrary to the MCI Regulations and the University Ordinance 272. Before dwelling upon this aspect, I would like to have a resume of the decision cited at the bar.
Re. Citations relief by Shri M. Rafiq
21. In Shrwan Kumar v. DG of Health Services (4), eligibility certificate granted to the petitioner was withdrawn resulting into consequential cancellation of admission to the MBBS but the Apex Court quashed such order of withdrawal. Shri Dalip Singh relied upon one of the clauses approved by the Apex Court as scheme prescribing the procedure to be followed for allotment of 15% all India quota for admission to MBBS/BDS courses in various colleges in the country whereunder as per Clause (20) the whole allotment and admission process to the 15% seats for all India quota will be over by September 30 and any seat remaining vacant thereafter will be deemed to have been surrendered back to the colleges/States.
22. In Medical Entrance Problems Redressal Forum v. DG Health Services (5), modification in para 3 of the scheme for admission to MBBS/BDS courses against 50% all India quota as approved by the Apex Court in its order dated 30.4.93 in Shrwan Kumar v. DG Health Services (supra), was sought and it was allowed to the extent herein below:-
"3. A merit list equal to total number of seats plus a waiting list of 70% of total number of seats shall be prepared."
23. This modification was given effect to while making selection for academic session (1998-99) for admission to MBBS/BDS course.
24. In Rajiv Mittal v. M. Dayanand University Rohtak (6), the Apex Court held as under:-
"The system of counselling for the purpose of granting admission to various medical colleges in the State is now regarded as most equitable one, where options are given of various seats to the students in accordance with their overall merit position in the combined entrance examination. This is a competitive examination. If as a result of first counselling, all the seats, which are available, are filled, then no further counselling takes place. Where, however, some seats become available, then it appears that second, third or if the need arises, fourth counselling does take place but in such a manner that normally there should be no delay in the commencement of the course of study. Furthermore, unless and until counselling takes place, no candidate who has been granted admission on the basis of counselling, is allowed to change his college merely because a seat in another college has fallen vacant. The seats, if any which fall vacant, can only be filled if and when counselling takes place where the candidates who have already been selected may have an option of shifting to another college."
25. It was a case where Sunil Yadav had secured admission in the reserved category quota at the first counselling, so according to the Apex Court, there would be no occasion for him to take part in the second counselling for the general category seat for the same college which was held on 26.8.96 and the seat which had fallen vacant was one of the 49 seats which was required to be filled by the general category candidates. The Apex Court held as under:
"As the aforesaid Note 2 was not applicable to a case like the present, where Sunil Yadav having failed to secure admission to a seat in the open category in the first counselling, the question of his being shifted or being regarded as a candidate to the open category seat which had become available only after he had secured admission did not and could not arise and consequently, the appellant was rightly granted admission to the general category seat in the Rohtak Medical College."
26. The decisions in Shrwan Kumar v. DG Health Service (supra); Rajiv Mittal v. Dayanand University (supra) and Unni Krishnan's case (supra) have commonly been relied upon by the learned counsel for both the parties, however, as discussed above, these decision to large extent render help in advancing case in favour of the petitioner Institute.
Re. Citations relied by Shri SP Sharma
27. In Prajesh Kanti v. Competent Authority (7), the question was as to the entitlement to merit seats in private colleges for MBBS course. The Apex Court held that in view of relevant rules and Notifications dated 2.8.97 and 29.8.97 of Directorate of Medical Education of Govt. of Maharashtra, such candidates are entitled to be considered as wait listed candidates for merit seats falling vacant in government colleges only and not for merit seats falling vacant in private colleges. It was a case where the candidates having been offered but refused merit seats in government colleges as wait listed candidates so the Apex Court held they they could not agitate against grant of admission to merit seat falling vacant in the private medical college to a less meritorious candidate who having opted only for a merit seat and not having been selected in the initial selection had been kept on the waiting list for merit seat.
28. In Admission Committee CII 1995 v. Anand Kumar (8) the Apex Court held that in a case of conflicting versions of student and that of selection committee, in the absence of malafides or any other material, the High Court should have preferred to accept the Selection Committee's version inasmuch as requiring such a committee to justify each and every selection made, amounts to imposing an impossible burden on it. Since it was a case of three long years having elapsed since the student's admission to the course of his choice, High Court's decision left undisturbed.
29. In Unni Krishnan v. State of AP (supra), three questions were formulated by the Apex Court (per Mohan, J., while concurring with the view rendered by B.P. Jeevan Reddy, J.) as fpttows:-
1. Whether the Constitution of India guarantees a fundamental right to education to its citizens?
2. Whether there is a fundamental right to establish an educational institution under Article 19(1)(g)?
3. Does recognition or affiliation make the educational institution an instrumentality?
L.M. Sharma, CJ., (for himself and Bharucha, J. as he then was) (partly dissenting) though were in agreement with the judgment of B.P. Jeevan Reddy, J., but observed as under-
Having given our anxious consideration to the arguments in favour of and against the question aforementioned, we are of the view that we should follow the well established principle of not proceeding to decide any question which is not necessary to be decided in the case. We, therefore, do not express any opinion upon this question except to hold that the firming given in Mohini Jain case (1992(3) SCC 666) on this question was not necessary in that case and, is, therefore, not binding law. We are of the view that if it becomes necessary to decide this question in any subsequent case then, for the reasons set out above and having regard to its vast impact, inter alia on the country's financial capacity, the question may be referred to a larger Bench for decision.
5. For the purposes of these case, it is enough to state that there is no fundamental right to education for a professional degree that flows from Article 21."
30. As regards question No. 1, the Apex Court concluded that the right to free education upto the age of 14 years is a fundamental right. With regard to question No. 2 the Apex Court held as under;-
"71. The argument that every activity or occupation by the mere fact of its not being obnoxious or harmful to society, cannot by itself be entitled to protection as fundamental right.
As pointed out above, some rights, by their very nature, cannot, be qualified to be protected as fundamental rights.
72. Accordingly, it is held that there is no fundamental right under Article 19(1)(g) to.establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that any one desirous of starting an institution purely for the purposes of educating the students could do so but Sections 22 & 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind."
As regards third question, the Apex Court (per Mohan,J.) held as under:-
"76. Applying these tests, we find it impossible to hold that a private educational institution either by recognition or affiliation to the University could ever be called an instrumentality of State. Recognition is for the purposes of conforming to the standards laid down by the State. Affiliation is with regard to the syllabi and the courses of study. Unless and until they are in accordance with prescription of the University, degrees would not be conferred. The educational, institu-tions prepare the students for the examination conducted by the University. Therefore, they are obliged to follow the syllabi and the courses of the study."
31. In para 203, their Lordships observed that for the purpose of these cases, they shall proceed on the assumption that a person or body of persons has a right to establish an educational institution in this country but this right-right, as they made it clear, was not an absolute one and it was held subject to such law as may be made by the State in the interest of general public. Therefore, their Lordships made it clear that the right to establish an educational institution did not carry with it the right to recognition or the right to affiliation. It has further been held that it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to them but he or the educational institution has no right to insist that the certificates or degrees awarded by such institution should be recognised by the State muchless have they the right to say that the students trained by it should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality.
32. Their Lordships also held that since the recognising/affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution, because no Govt. authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions and doing so would amount to abdicating its obligations enjoined upon it by Part-III.
33. Applying these tests, their Lordships evolved the scheme, keeping in view the positive features of the several Central and State enactments also which every authority granting recognition/affiliation shall impose upon the institutions seeking such recognition/affiliation. The idea behind the scheme was to eliminate discretion in the management altogether in the matter of admission because it is the discretion in such admission that is at the root of the several ills complained of, which has mainly led to the commercialisation of education.
34. The scheme evolved by the Apex Court was in the nature of guidelines which the appropriate Governments & recognising/affiliating authorities shall impose and implement in addition to such other conditions and stipulations as they may think appropriate, for grant of permission, grant of recognition or grant of affiliation, as the case may be. This scheme was confined only to professional colleges and held not applicable to colleges run by Government or to University Colleges. However it was made clear that only those institutions which seek (a) permission to establish (b) recognition/affiliation from the appropriate authority shall alone be made bound by the scheme.
35. However from the scheme evolved in Unni Krishnan's case (supra) it is crystal that for grant of permission, grant of recognition, grant of affiliation, the conditions envisaged in the scheme were held necessarily to be imposed, in addition to such other conditions as appropriate authority may think appropriate. In this view of the matter, no private educational institution was allowed to send its students to appear for an examination held by any Government or other body constituted by it or under any law or to any examination held by any University unless the education institution and relevant course of study is recognised by the appropriate authority and/or is affiliated to the appropriate University, as the case may be.
36. The scheme evolved by the Apex Court albeit is elaborately stated in last paras (206 to 210) but it is pertinent to mention that since it was made clear that it shall be open to the appropriate authority and the competent authority to issue such further instructions or directions as they may think appropriate but not inconsistent with this, scheme, the appropriate & competent authority in deference to the decision of the Apex Court framed and promulgated the Medical Council of India (Norms and Guidelines for fees and Guidelines for Admissions in Medical Colleges) Regulations, 1994 (for short Regulations 1994). Further, by the Indian Medical Council (Amendment) Act, 1993 (Act No. 31 of 1993) under Gazette notification dated 3rd April, 1993, which was made deemed to have come into force on the 27th day of August, 1992, the Indian Medical Council (Amendment) Ordinance 1993 was repealed and the amendments in Section 33 and introduction of new Sections 10A, 10B, & 10C were envisaged in the Indian Medical Council Act, 1956 in deference to the scheme evolved by the Apex Court in Unni Krishnan's case (supra).
37. Upon a conjoint reading of the scheme evolved in Unni Krishnan's case adopted by way of framing of Regulations 1994 and introduction of new Sections 10A to 10C in the MCI Act, 1956, I must concisely state significant and salient features relevant for disposal of the present petitions as follows:-
(1) 50% of the seats in every professional college shall be filled by the nominees of the Government or University, which were described as "free seats."
(2) Remaining 50% seats were described as "payment seats" shall be filled by those candidates who are prepared to pay the fee prescribed therefor.
(3) Allotment of students against free & payment seats shall be made by way of selection & merit determined on the basis of common entrance examination, inasmuch as the criteria of eligibility & all other conditions shall be the same for free & payment seats.
(4) The management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to payment seats.
(5) The rule of merit shall be followed even in reserved categories.
(6) All the applications for admission to all seats in private colleges shall be called for by the competent authority alone, alongwith applications for admission to Government/University Colleges for similar nature.
(7) The application forms for admission shall be issued by the competent authority, containing a column or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference upto three professional colleges.
(8) Number of seats available in the professional colleges shall be fixed by the appropriate authority and no professional college shall be permitted to increase its strength except under the permission of authority granted by the appropriate authority.
(9) Each professional College shall intimate the competent authority, the State Government and the concerned University in advance the fees chargeable for the entire course commencing from the academic year. The total fees shall be divided into number of years/semesters of study. In the first instance fees only for the first year/semester shall be collected. The payment students will be required to furnish either cash security or Bank guarantee for the fees payable for the remaining years/semesters.
(10) The fees chargeable in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent authority or by a competent authority.
(11) It would be appropriate if the UGC frames regulations under Section 12A(3) of the UGC Act regulating the fees which the affiliated colleges, operating on no grant-in-aid basis are entitled to charge. The Indian Medical Council and Central Government may also consider the advisability of such regulation as a condition for grant of permission to new medical colleges under Section 10A and to impose such a condition on existing colleges under Section 10C.
(12) Any candidate who fulfills the eligibility conditions would be entitled to apply for admission. After the free seats in professional Colleges are filled up atleast 10 days time will be given to the students to opt to be admitted against payment seats. The students shall be entitled to indicate their choice for any three colleges (if available).
(13) The payment candidates shall be alloted to different professional colleges on the basis of merit cum choice and the allotment shall be made by the competent authority.
(14) A professional college shall be bound to admit the students so allotted by the competent authority. Casual vacancies or unfilled ones if any shall also be filled in the same manner. The management of a professional college shall not be permitted to admit any student other than the one allotted by the competent authority whether against free seat or payment seat.
(15) Even in the matter or reserved categories, the principle of inter se merit shall be allowed.
(16) No professional college shall be entitled to ask for any other of further payment or amount, under whatever name it may be called, from any student allotted to it whether against free seat or payment seat or payment seat.
(17) After making allotment, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. Such list shall be followed for filling up any casual vacancies or 'drop-out' vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority.
38. Ultimately, the Apex Court (per Majority View) held that albeit the citizens of India have a fundamental right to education as it follows from Article 21 but such a right is not an absolute right because its content and parameters have to be determined in the light of Articles 45 and 41, as referred to above, and obligations created by Articles 41, 45 & 46 can be discharged by the State either by establishing institutions of its own or by aiding, recognising and/or recognising, affiliation to private educational institutions. Thus it is trite that a citizen of India may have a right to establish an educational institution but no citizen, person or institution has a right muchless a fundamental right, to affiliation or recognition, or to grant-in-aid from the State. The recognition and/or affiliation shall be given by the State subject only to the conditions set out in, and only in accordance with the scheme contained in Part III of the judgment (Unni Krishnan's case, ibid). Therefore in my considered view also, no Government or University or authority shall be competent to grant recognition or affiliation except in accordance with the scheme evolved by the Apex Court (supra) & duly adopted by the legislature pursuant thereto.
39. Besides above, Shri S.P. Sharma learned counsel for the petitioner College cited decision in TMA Pai Foundation v. State of Karnataka (9). It was a case where interlocutory applications were disposed of on the basis of scheme evolved in Unni Krishnan's case (supra) and further directions were issued in addition to, in continuation of and in clarification of earlier orders including order dated 11.8.1995 as extended by order dated 10.5.96. These directions relate to fee structure and refund etc., and under Clause (vi) to para 4 of the decision (supra), it relates to amendment in Clause (g) adding in Sub-rule (3A) to Rule 10 of Karnataka Selection of Candidates for admission to Engineering, Medical & Dental Courses Rules, 1993 and in that regard the Apex Court held that the said clause is a salutary one and all that needed to add to it was that action contemplated therein shall be taken within fifteen days of the closing date for admission and any seats remaining unfilled thereafter can be filled by the management of private engineering colleges on their own and in their discretion. I must hasten to add that such a direction was restricted to engineering college and in other words, it was specifically made clear that this direction shall not apply to medical/dental colleges. The Apex Court in para 6 observed as under:-
"6. So far as the modification of the scheme contained in Unni Krishnan is concerned, that is a matter before this Court separately. Probably that may have to be done by a larger bench as indicated in one of our earlier orders. We are, therefore, not making any directions in that behalf."
40. in this view of the matter, the decision in TMA Pai Foundation's case (supra) does not help much more to the petitioner college.
41. In Arvind K. Kankane v. State of UP (10). dealing with issue as to admission to Post Graduate Medical Course counselling, the Rules framed under the Government order dated March 30, 1994 was held valid for the reason being as follows:-
"If seat not included in initial counselling by mistake is sought to be offered to all the candidates for counselling, the result would be that all the candidates who took part in the first counselling should be given a chance, in order of merit to opt for the same seat. This will start a chain reaction and ultimately there will be one seat more, which would become available for the second counselling. There again a chain reaction will start leading to the third counselling. The effect of putting the seat back for counselling for all candidates would, therefore, be to upset the entire counselling which had already taken place. Prima facie, though it appears to be somewhat unfair, there is no alternative, apart from leaving the seat unfilled, but to offer the said seat to the wait listed candidates and once the academic course commences the same will have to be completed within a period of three years and if the counselling goes on continuously for a long period then it may not be possible to fulfill that condition and thereby upset the course of study, itself."
42. Shri S.P. Sharma learned counsel for the petitioner Institute laid much stress by contending that the Private Medical Colleges are governed solely by provisions contained in Notification dated 21:12.1994 (Ann. 2), and according to method & pattern laid down by the MCI as to the admissions in private medical colleges, it is clear that the State Govt. has unnecessarily & wrongfully been imposing its own provisions upon the petitioner Institute. Shri Sharma cited the decision in In Dr. Preeti Srivastva v. State of MP (11), the issue for consideration before the Constitution Bench was as to whether apart from providing reservation for admission to the post graduate courses in Engineering and Medicine for special category candidates, it is open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission under the reserved category. However the Constitution Bench addressed itself to the issue as to whether for admission to the post graduate medical courses, it is permissible to prescribe a lower minimum percentage of qualifying marks for the reserved category candidates as compared to the general category candidates. Specifically, the Bench did not go into the issue whether reservations are permissible at the PG level in medi- cine, because this issue was not debated before it and no opinion was expressed on it.
43. Norms of admission can have a direct impact on the standards of education. There can be rules for admission consistent with and not affecting adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors.
44. Admissions must be made on a basis duly consistent with the standards laid down by an statute or regulation framed by the Central Government in exercise of its powers under Entry 66 List 1. I have lent support from the principles of law laid down in Dr. Preeti Sharma v. State of MP (supra). In every case minimum standards are laid down by the Central statute or under it, have to be complied with by the State while making admission and in addition, it may lay down other norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which odes not dilute the criteria so laid down.
45. Thus, viewed, once minimum standards are laid down by the authority having the power to do so, any further qualifications laid down by the State will lead to the selection of better students which cannot be assailed on the ground that it is contrary to what has been laid down by the authority under Central statute. Candidates having qualified from different universities and in courses being not necessarily identical have to be assessed keeping in view their relative merit form admission to a PC course. Therefore it is for proper assessment of relative merit of students who have taken different examinations from different universities in the State that a uniform entrance test is prescribed as it is a test necessarily partaking of the character of an eligibility test as also a screening test and that being so, minimum qualifying marks are necessary.
46. The Apex Court then observed that it is not possible to agree with proposition that prescribing no minimum qualifying marks for admission for the SC/ST students would not have an impact on the standard of education in the medical colleges. However, it was also made it crystal that the difference in the qualifying marks should be atleast the same as for admission to the undergraduate medical courses, if not less because this level is only one step below the apex level of medical training and education where no reservations are permissible and selections are entirely on merit. Such an observations were made by the Apex Court while dealing with issue as to whether special provisions for SC/ST students whether reservations or lower qualifying marks at the speciality level have to be minimal. The Apex Court held that at only one step below this level the disparity in qualifying marks if the expert body permits it, must be minimal and it must be kept at a level where it is possible for the reserved category students to come upto a certainlevel of excellence when they qualify in the speciality of their choice. I find support from the view thai unless there is a proper control at the stage of admission on the different categories of the students who are admitted and unless the differences are kept to a minimum, such differences will not disappear in the course of time if the course of study is a specialised course such as a PG course.
47. Ultimately the Apex Court held that there is no logic or rationale for the difference to be larger at the post graduate level and it is not permissible under Article 15(4) the same being unreasonable at the post graduate level and contrary to the public interest. The selection should be consistent with Article 335 as these entrants occupy posts in teaching hospitals and the norms have to be laid down by MCI regarding reservation of seats for SCs, STs & OBCs and minimum qualifying marks for the reserved category students.
48. Now the decks are clear that Regulations framed under Sections 20 & 33 of the MCI Act are binding and covered by List I Entry 66 and the States cannot make rules and regulations under List HI Entry 25 in conflict with these regulations because State's competence under List III Entry 25 is subject to standards of education laid down under the Act. Further power U/s. 20 of the MCI Act to prescribe minimum standards of PG medical education is not merely advisory in nature but Universities are bound to be guided by the standards prescribed in view of Articles 245, 246 and 254 of the Constitution of India.
49. Needless to lay much emphasis except to concisely state that establishing of a medical college and medical education therein are governed by the Indian Medical Council Act, 1956 (for short the MCI Act). Contrarily several persons and institutions indulged in establishing medical colleges without providing therein minimum necessary & proportionate infrastructure i.e. teaching and other facilities required for them which resulted in sharp decline in the maintenance of higher standard of medical education. That being so, to put restriction on mushroom growth of medical colleges and to maintain high standard of medical education, stringent provisions were brought in the MCI Act in the year 1993 by way of insertion of Sections 10A, 10B & 10C therein by amending Act No. 31/93.
50. Hence as already held above, conditions of admission and criteria laid down by the Union of India as per gazette notification issued on 21.12.1994 would govern to the extent of repugnance with Ordinance 272 of the University, is cases of private medical colleges like petitioner Institute.
51. Though in first counselling concluded on 31.8.2001 the petitioner Institute was not included because of aforesaid exceptional circumstances obviously till the order notifying 1st counselling in between 27th to 31st August, 2001 was issued on 9.8.2001, the Central Government had not permitted the petitioner Institute to establish its medical college, which is pre- requisite condition to allot students to the medical college under the MCI Act and Regulations made thereunder, but therefore in aforesaid circumstances, for allotment of the petitioner Institute the respondent Convener conducted counselling (though as per the petitioner is described as second, but in my conducted counselling (though as per the petitioner is described as second, but in my considered view, it was first counselling for the petitioner in exceptional circumstances) by order dated 15.9.2001 (Ann.6) notifying counselling date on 28-29.9.2001 and concomitantly 1 st reshuffling was also notified, and according to which it included not only the unfilled/vacant seats of six State Medical Colleges but also 85 seats (50 free & 35 payment) belatedly allotted to the petitioner Institute in between 24th to 31st August 2001 by the Central & State Governments besides University of Rajasthan.
52. In my considered view, had the petitioner Institute been included in the order of 98.2001 notifying first counselling scheduled in between 27th to 31st August, 2001, would not it have been absolutely illegal & contrary to the MCI regulations and Act, itself, besides the University of Rajasthan Ordinance 272, because'the petitioner Institute was nowhere in sight having requisite permission Under Section 10A of the MCI Act, at the time of publication of first counselling Notification which was published Ion. back on 9.8.2001, there was no question of there being denial of allotment of students of higher merits or for the students having admitted in the first counselling.
53. Here it cannot be eschewed as irrelevant for, significant Notification of 15.9.2001 (Ann.6) hence I must browse through its contents and it makes crystal from first part thereof that even those candidates who have joined & continuing as a result of first selection in MBBS or BDS course under different categories in various State medical colleges may also apply for re- allotment/reshuffling on vacancies due to non joining or admission in the petitioner Institute (newly established private medical college) provided it is in conformity with original preference indicated by them at the time of initial selection. Further a categorywise list had been stated as to SC Girls, SC Boys, ST Girls, ST boys, OBC Girls, OBC Boys, General (Boys & Girls) & D.A. (Gen. Boys) for each of which, marks were given and the students falling within range therein could apply for counselling scheduled to 29.9.2001, e.g. as is pleaded by the respondent, in case of SC Boys, students securing RMPT marks between 706 to 685 & for General (Boys & Girls) securing marks between 869 to 845 were to be taken into consideration.
54. Much emphasis was laid by the respondent Convener that candidates who applied for first reshuffling & candidates who applied for first reshuffling & admission in the petitioner Institute who were subjected to counselling & interview and their options obtained, were granted admission on the basis of merit cum preference cum availability of seat and when entire list of candidates invited to appear for such interview (counselling) exhausted and ultimately out of total 85 seats (which were to be allotted by the UG admission Board as per Admission Regulations, 1994) four payment seats still remained vacant at the petitioner Institute because only 81 students had opted for admission in the petitioner iNstitute against 85 notified seats. It was also the case of the respondent Convener of the admission Board that at the time of admission to MBBS course in the petitioner INstitute under notification of 15.9.2001 for general category, all the seats were filled in by the students who had mostly preferred for BDS course because no other seat in another medical college including free seats of petitioner Institute was available to them inasmuch as they did not opt for payment seats obviously because for State Medical Colleges, student taking admission to MBBS course is required to pay approx. annual fee at Rs. 2000/- as against in private medical college like the petitioner Institute even of free seat at annual fee of Rs. 60,000/- due to hostal accommodation having been made by the petitioner Institute as compulsory. I quote reply para 11 as under:-
"The situation of reserve category candidates of SC/ST was however, different. In these categories at the time of first reshuffling (first counselling for admission to the petitioner institute) there were 8 seats of SC & 6 seats for ST out of which 25% of each of these ones was meant for female candidates from the category itself. At the time of first resfulling even after filling up of these 8 seats of SC & 6 seats of ST still (certain candidates) remained available who had indicated their option for admission against free seats in petitioner Institute and, therefore, a waiting list was prepared in both the categories namely SC/ST for male & female both."
"It is, therefore that when petitioner Institute by letter of 20.10.2001 (Ann. 11) converted one vacancy in male SC category on account of the fact that waiting list was already with the respondent, exercise of calling candidates all over again was not considered necessary and name of candidate No. 1 in waiting list Shri Rajeev Navaria was sent in the list dated 7.11.2001."
55. As regards impugned 12 seats, it was the case of the respondent that even after the first reshuffling a & counselling meant for admission in the petitioner Institute under Notification dated 15.9.2001 (which is not impugned herein), seven seats plus four unfilled payment seats remained vacant because seven allotted students did not join the petitioner institute out of only 81 students who opted for admission in the petitioner institute, for which the petitioner Institute intimated the respondent Convener by letter dated 20.10.2001 (Ann.11), but as per the respondent Convener one additional seat which was taken as unfilled due to the fact that a candidate earlier allotted to the petitioner institute (Shri Parmesh Pachar was found medically unfit as he was declared colour blind by the Medical Board, and that being so, in all a total of 12 seats of the petitioner Institute were notified alongwith other seats in other six State Medical College including BDS, for which notice (Ann.12) was issued on 23.10.2001 and as a result of reallotment (in the nature of allegedly third counselling for RPMT 2001 & 2nd reshuffling) 12 students were allotted the petitioner Institute by impugned allotted the petitioner Institute by impugned allotment order (Ann. 17) of 7.11.2001 whereby ultimately all 85 students of the petitioner institute were taken as filled inasmuch as contemporaneously a waiting list was also prepared and forward to the petitioner Institute.
56. Be that as it may, since the petitioner Institute has not challenged the allotment of 50 (free) & 31 (payment) seats students made in its favour in counselling notified on 15.9.2001 & done on or about 29.9.2001, in this petition, without further entering into this aspect as it may prejudice rather suffice is to say that these facts have been alleged with a view to prejudice this Court, which cannot be permitted. Now I must dwell upon the challenge to the impugned order (Ann.17).
57. It is a case of the petitioner Institute to assail the impugned order (Ann.17) of admitting and allocating 12 students (six free & six payment seats) to the medical college (petitioner) that such an allocation by way of 3rd counselling is wholly defective for reasons inter-alia (a) that it is contrary to MCI gazette notification dt. 21.12.94 (Ann.2) (Admission Regulations 1994) so also Order 272 because 3rd counselling could not have been done besides being contrary to the scheme evolved by the Apex Court in Unni Krishnan's case (supra); (b) that it is also contrary to the respondents' own notification of 23.10.01 (Ann. 12) because (i) although no SC seat was notified but one SC candidate has been selected, (ii) although only one OBC seat was notified but 2 candidates (Jeevanram & Vijay Pal Singh) were selected; (iii) candidates of 860 to 840marks were admitted in BDS & MBBS course e.g. Anil Gupta of 859 marks have been allotted MBBS Kota while arvind Jain MBBS Udaipur while general category candidates of 862 marks (in all 5) were placed in waiting list for free seats); (iv) a disabled quota seat at MBBS Kota as notified has been filled by a general candidate; and (c) if the remaining seats had been allowed to be filled from waiting list, candidates having higher marks would have fair chance to joint the Institute (petitioner) and the admissions would have been properly made. It is also the case of the petitioner that even now if the waiting list prepared after 2nd counselling done on 28/29 of September, 2001 is provided to the petitioner Institute then the Institute would be benefited by admitting higher meritorious candidates.
58. Next plunk of attack to the impugned order (Ann. 17) is that the respondents erroneously allowed students who had already been admitted the BDS course, to opt for MBBS course by order (Ann.17) because as per Shri Sharma once the students having been admitted in BDS course in 1st counselling, cannot thereafter be allowed to again seek benefit of counselling for admission in MBBS course for the reasons inter alia (i) BDS course is governed by Order 278 of the University and there is no provision for shifting candidates form BDS to MBBS; (ii) Order 272 did also not provide for allowing students having been admitted in BDS course to seek option for allocation in MBBS course; and (iii) the students already allotted BDS course are governed by Dental Council of India Regulations & Indian Dental Council Act, while students opted & allotted MBBS course are governed by Indian Medical Council Act, 1956 so also Regulations made therein.
59. As regards three seats one each at Medical College, Udaipur, Jodhpur & Kota - for re allotment/reshuffle in second reshuffling, it was the case of the respondent that these three seats were made subject to the order of the Apex Court in Writ petition No. 443/92 & 447/2001 as these belong to Central PMT quota but reverted to the State quota due to not being filled in within prescribed time, which was assailed before the Apex Court. It has been averred in the reply by the respondent that the candidate securing more marks than 862 have deliberately not opted for admission against any of these three seats obviously because they were expected of their admission elsewhere and one of such students had secured admission against payment seat with the petitioner Institute; and that S/Shri Manish Verma with 862 marks, Anil Kumar gupta with 859 marks and Arvind Kumar Jain with 857 marks have been admitted at Jodhpur, Kota and Udaipur respectively, who were admitted subject to their furnishing undertaking that they would vacate seats in case of judgment to the contrary being passed by the Apex Court.
60. It was further case of the respondent that candidate with better merit would obviously choose MBBS, a preferred course than the BDS, because students with lesser marks remain contented in admission against BDS course in SMS Medical College, Jaipur. However, it is admitted position of the respondent that even the respondents are taking 30.11.2001 as cut off date after which no vacancy can be filled up and that being so, 12 students were allotted the petitioner Institute by allotment order (Ann. 17) of 07.11.2001 whereby students were allotted joining time upto 16.11.2001 and by such allotment of these 12 candidates all 85 seats would have been filled up with the petitioner Institute.
61. As regards the petitioner's case for not publishing entire merit list & waiting list after first counselling, it has been urged on behalf of the respondent that waiting list is prepared only during first reshuffling or after 2nd reshuffling which may take place depending upon availability of vacancies, if any, because at the time of first counselling, students are allotted various medical colleges as per their preference during interview and it is only thereafter, different medical colleges submit number of vacancies and on that basis reshuffling takes place, when if more number of students than available number of vacancies appear for a particular category, then the waiting list is prepared so that the students are not required to be called again for the same purpose. In an affidavit of Dr. Jagdish Choudhary (additional officer-Incharge) for the respondent it has been urged that one vacant seat of disabled category was notified under counselling Notification of 23.10.2001 (Ann. 12) for re allotment/reshuffling but was filled in by a student of general category, because Satya Prakash Khatri earlier was allotted Kota medical college in disabled category but on being examined by the Medical Board was declared unfit for admission, therefore, this sea was notified and however, he represented to the Government which accepting his case directed to treat him as fit for admission vide Ann. AA1 and that being so, he was admitted against disabled quota. As regards one general category student Anil Kumar Gupta (who was allotted Kola Medical College in admission order (Ann. 17) was filled up by admitting him against CPMT seat upon having been available subsequently issuing notification of 23.10.2001 as reported to be vacant by Principal of that College during counselling on reallotment on 2.11.2001 because that seat had fallen vacant due to resignation of Shri Neeraj Raj Purohit (Ann.AA2) earlier allotted in CMPT quota and he resigned due to his allotment of MBBS course in Jodhpur medical college in RMPT.
62. As regards the petitioner's case for selection of SC students viz. Kamal Kishore Chitra with PMT marks 702(1) and Krishna Singh with 702(11) marks being higher in merit ass against Rajeev Navaria with lower merit having 699 PMT marks admitted to the petitioner Institute, in an affidavit of Dr. jagdish Choudhary (named above), it has been urged that since Kamal Kishore Chitra did not present during counselling while it was necessary as per Order 272, and Krishna Singh though appeared but he opted BDS seat at Jaipur by submitting in writing (Ann. AA3) on 29.9.2001 that he declined to take any other seat available in any other medical coilege, inasmuch as at that point of lime during 2nd counsel all SC seats had already filled in and as against 2 SC girls seats fur students were called while as against six SC boys seats 13 SC boys were called and, therefore, upon filling up of all the seals when more students were available, a waiting list was prepared wherein Rajeev Navaria was placed at No. 1, Suresh Kumar Chandalia at No. 2, and in this view of the matter, when waiting list was ready with Rajeev Navaria, this was not required to be notified and hence not notified in 2nd reshuffling rather direcling making allolment of Rajeev Navaria.
63. In cases of general category waiting list, Dr. Jagdish Choudhary in his additional affidavit urged that, waiting list could not be prepared because as against 10 seats of OBC boys, 6 seats of general girls, 26 seats of general boys, 35 paid seats and for BDS one seat of OBC boys, 2 seats of general girls and 3 seats of general boys, thus 77 seats of MBBS and six seats of BDS namely for 83 seats, a tolal of 224 students had been called and yet the students inspite of availability of payment seats with the petitioner inspile did not opt for admission and hence the respondent Convener had no option but not to allot students, for which the petilioner Inslilute cannot blame the respondent by vexalious and baseless allegalions against the admission Board.
64. As regards reshuffling or reallolmenl from BDS to MBBS under the impugned order (Ann. 17), Dr. V.N. Saxena (Officer- Incharge) in his counter affidavit filed on 8.2.2002 urged that as per Order 278 pertaining to BDS course, its Clause II provides for eligibility for Admission to first BDS course as under: -
"Provided that where competitive entrance examination (Pre-medi-cal Test) is held for selection, the candidate must have passed the aforesaid qualifying examination and obtained atleast 50% marks in the aggregate at the said entrance examination."
65. On the basis of afore quoted Clause II to Order 278, it has been urged that the very ordinance once provides for common entrance examination being PMT, therefore, the merit list of students upon having remained available after admission to MBBS & BDS courses is commonly used, and as a result of non joining of the students, reshuffling/reallotment does take place as provided in Clause (xi) to Order. 272-III, according to which he student is entitled to reallotment/ reshuffling only if he joins and continues the allotted course and college which clearly shows that reallot-ment/reshuffling can be made not only in relation to College but also course, as has specifically been used in Clause (xi) to signify that. Clause (xi), itself, is re-quoted as followed:
"(xi) The candidate is entitled for re- allotment/reshuffling only if he/she joins and continues the allotted courses and college, failing which hiss/her selection will be terminated."
66. Dr. V.N. Saxena in his affidavit further urged that Order II-A inserted in relation to Private Medical College, its Clause (iv) has treated free and payment seats in different categories and stated that admission to them shall be made on merit cum priority and, therefore, a student having been admitted against payment seat can also opt and be reallotted/reshuffled to free seat and thereby there is no legal impediment under it.
67. It is the case on behalf of the respondents State that there is no embargo for conducting counselling for more than 2 times and could be conducted upto completion of three months from first selection date, inasmuch as waiting list of candidates can be prepared form the students having already appeared in the counselling and that apart a candidate having higher merit and not appeared for one reason or the other before the Admission Board his name cannot be included in a Waiting list. Shri M. Rafiq learned Additional Advocate General for the respondents placed reliance upon the decision in Rajiv Mittal v. MD University (supra).
68. As regards reservation of drop out & vacant seats having done by the impugned order dt. 7.11.2001 (Ann.17), Shri S.P. Sharma learned counsel for the petitioner Institute placed reliance on the provisions contained in Clause 9(d) of the Admission Regulations 1994 and therefore contended that reservation policy being adopted by the University for the State Medical Colleges cannot be imposed on a Private Medical College and it has resulted In admitting & allocating lesser meritorious students in private medical college that too of drop out seats vide impugned order dated 07.11.2001. Contrarily it is the stand of the respondents that more meritorious students did not opt for the MBBS course.
69. A careful look at the provisions contained in Order 272-V of the University, its Clause (iii) provides that interview and allotment of the College will be done within three weeks of declaration of the result of State Pre Medical Test. The result of State Pre Medical Test 2001 held in between 21st to 24th May, 2001 (relevant for the present controversy) was declared on 15.7.2001. And according to Clause (iii), ibid, Interview & allotment of the College would have commenced within three weeks after 15.7.2001 (date of result of PMT 2001) but curiously enough notification was issued on 9.8.2001 notifying counselling dates in between 27th to 31st August, 2001 and pursuant thereto, first counselling (meant for allotment of college) took place for RPMT 2001 in between 27th to 31st August, 2001. It is reiterated that in case of the petitioner Institute till first counselling took place or its Notification was issued, no permission Under Section 10A of the MCI Act has ever been issued and only on 27th August 2001, such a permission with intake of 100 students was issued. Obviously 2nd counselling under Clause (iii) (supra) was notified on 15.9.2001 for allotment of the students to the petitioner College but it was first counselling for the petitioner Institute.
70. According to Clause (ix) of Order 272-V of the University there is also provision that in case of there remaining vacancy due to non joining of the allotted candidates within stipulated time, it is an obligation upon the medical college to submit vacancy position within four weeks of allotment of college. In the case at hand, after having allotted only 81 seats (50 free & 31 payment seats) in the counselling made pursuant to Notification dated 15.9.2001 (Ann.6) on 28.9.2001 for the purpose of admission & allotment of students, have been made in favour of the petitioner medical college. Surprisingly enough again the respondent Convener despite 85 seats having been, assigned out of 100 intake students, kept four vacancies by non-allotment of payment seats to the petitioner Institute, for which also I do not find any satisfactory explanation on record and such a practice deserves to be condemned. Be that as it may, the petitioner Institute had no option by its letter dt. 20.10.2001 (Ann. 11) except to submit category wise vacancy position due to non joining of the allotted students within stipulated time and this vacancy position did also include four payment seats vacancy having been not allotted by the respondents Convener during 1 st counselling meant for the petitioner Institute in exceptional circumstances (supra).
71. However, it is reiterated that the Convener (respondent No. 2) issued Notification of 23.10.01 notifying one free seat of OBC made category, three free seats of General category and six payment seats as vacant in the petitioner Institute due to non-joining of the students within stipulated time, for being filled up on reallotment/reshuffling, to which the petitioner Institute protested by sending its requests one after the other (Ann.13, Ann.14, Ann.16). Since as envisaged in Clause (x) of Order 272-V of the University, reallotment of vacancies is required to be done by the UG Admission Board (respondent No.2) within 14 days of the last date of submitting the vacancy position, the respondent No. 2 took interview on 2.11.2001 and it was 2nd counselling (reallotment) in case of the petitioner Institute in exceptional circumstance of belated permission having been given by the Central Government & State Government (supra). Pursuant thereto the respondent No. 2 issued order on 7.11.2001 by alloting six payment seats and six other different category free seats for admission in the petitioner Institute by way of reallotment and reshuffling.
72. As analysed above, first counselling is required to be done initially at the time, of admission & selection process by way of first interview and allotment as provided under Clause (iii) of Order 272-V of the University within three weeks of declaration of the result of the State Pre Medical Test. Second counselling is necessitated only when there remains vacancy due to non joining of the allotted candidates within stipulated time and for which process starts only when the College concerned submits (within four weeks of allotment of college) vacancy position due to non joining of the allotted candidates. Thus question of second counselling arises only upon having vacancy remained unfilled due to non-joining of the allotted college within stipulated time, and in other words such 2nd counselling is in the nature of reallotment of vacancies being done by the UG admission Board on interview of the candidates within 14 days of last date of submitting the vacancy position as envisaged under Clauses (ix) & (x) of Order 272-V of the University. No doubt for the ,RMPT 2001 three counselling have taken place but as analysed above it had occasioned in exceptional circumstance having arisen out of belated permission granted by the Central Government in favour of the petitioner Institute i.e. at the time of the commencement of first counselling in between 27th to 31st August, 2001.
73. However, even as per newly added para (Clause (xi) to Order 272-V of the University, quoted above) the candidate is entitled for reappointment/reshuffling only if he has joined & continued the allotted courses & college. But re appointment/re shuffling is to take place only after the students jointed & continued allotted course & college, meaning thereby its counselling takes place only after first allotment & interview after declaration of PMT result. Again, after re allotment/reshuffle as per Clause (x) to Order 272-V, if the resultant vacancies or such vacancies which could not be filled by reallotment, occasion then such resultant vacancies are required to be filled as envisaged in Clause (xii) to Order 272-V, by taking the candidates from remaining merit list of successful candidates of RPMT list on merit cum preference, for which the candidate is required to give his name for waiting list for any vacancies to be created in future. Above all, as per specific provision contemplated in Clause (xii) to Order 272-V, no admission shall be given after three months from the date of initial selection even if any vacancy occurs later on.
74. Here I must also hasten to add and hold that once the impugned order of 12 seats allotment (Ann. 17) is assailed by laying much emphasis on the applicability of the Admission Regulations, 1994 and it is an admitted case of the petitioner Institute that it being a private medical college is governed only by the Admission Regulations, 1994 which do not provide for 2nd counselling or reshuffling as provided in Order 272 of the University (which is being assailed by the petitioner institute as repugnant with Central Legislation (Admission Regulation 1994), then in my considered view, the petitioner Institute cannot be allowed to take somersault or blow hot and blow could in same breath, inasmuch as under the impugned order Ann. 17) alongwith allotting 6 BDS students for admission to the petitioner Institute in MBBS course, one more BDS student having secured 862 marks were allotted MBBS Jodhpur under OBC category (Manish Verma) but curiously enough unless he is impleaded as party to this petition, in my considered view, will it not be against principle of nature justice to hold that BDS students cannot be allowed to reshuffle their course to MBBS course, because on the analogy as adopted by the petitioner Institute that ord. 272 does not provide for reshuffling from BDS to MBBS course, if I agree with the petitioner Institute, Manish Verma will also have to be reverted back which cannot be done behind him. Hence I restrain from holding at this stage as to whether BDS students already allotted can be allowed to reshuffle their course to MBBS course or not and this issue is left open for debate at the appropriate stage because in the instant case, I am restricting myself to divulge and deflect to the challenge to the impugned allotment order (Ann. 17) in the context of the Admission Regulations, 1994.
75. Concomitantly, admission procedure is provided in Clause 5 of Admission Regulations 1994 (Ann. 2) (under which according to the petitioner Institute, Private medical Colleges are governed because Order 272 of the University is regpunant to Central Legislation - Admission Regulations 1994). Undisputably, the Admission Regulations 1994 under its Clause 2 (which relates to applicability) are contemplated only for its application to cover the MBBS course imparted by : (a) Medical colleges established under/or run by private educational institutions; and (b) such other medical coileges to which these regulations are made applicable by the Government, recognising and/or affiliating authority. In view of this applicability Clause 2 of the Admission Regulations, 1994, it is an admitted case of the petitioner Institute, itself that the petitioner Institute being private medical college is governed only by the Admission REgulations 1994 and thereby such Admission Regulations 1994 make it crystal that only the competent authority shall prepare a merit list on the basis of common entrance examination form amongst the successful candidates where common entrance examination is held, as provided in Clause 5(d) of the Admission Regulations, 1994. However, I must point out that no specific provision is made as to how a merit list is to be prepared under Clause 5(d) of the Admission Regulations, 1994, for which the competent authority (in the present case is UG Admission Board) may take guidance from Order 272 of the University. Be that as it may, admission procedure (Clause 5) and allotment of seats (Clause 7) do not envisage 2nd counselling and contrarily as per State legislation viz. Order 272 of the University two counselling are contemplated as analysed above. Hence in my considered view duly fortified from the view taken in the decision of the Constitutional Bench of Apex Court in Dr. Preeti Srivastva v. State of MP (supra) under Article 254 of the Constitution conditions of admission & criteria laid down by the Union of India as per gazette Notification of 21.12.1994 (Admission Regulation 1994) would govern to the extent of repugnance with Order 272 of the University and therefore as provided in Clause 7(d) (which deals with allotment of seats) of Admission Regulations, 1994, the competent authority (UG Admission Board) shall also prepare and publish a waiting list of candidates alongwith the marks so that such a waiting list may be followed after last date of allotment is over for filling any casual vacancies or "drop-out" vacancies arising after the admission are finalised, but it is also made clear that such casual vacancies or "drop-out" vacancies having arisen after finalisation of the admission shall be filled till such a date as may be prescribed by the competent authority (UG admission Board). Only thereafter (i.e. after such date prescribed by the competent authority under Clause 7(d), ibid), if any vacancies (i.e. casual vacancies & drop out vacancies having arisen after finalisation of admission) still remain then that vacancy shall be filled by the Magistrate of the Private Medical College but not before such prescribed date under Clause 7(d) of the Admission Regulations, 1994.
76. As analysed above, one it is crystal stand having been taken by the petitioner Institute in the light of the decision of Constitutional Bench of the Apex Court in Dr. Preeti Srivastva v. State of MP (supra) in the context of Private Medical College Admission Regulations, 1994 that admission criteria as laid down by the Union of India in its Gazette Notification of 21.12.94 (Admission Regulations 1994) (Ann.2) would govern to the extent of repugnance with Order 272 of the University, I have no option except to adjudge the validity of impugned allotment order (Ann. 17) in that regard only.
77. The petitioner Institute is a private medical college and that being so, it is governed by aforesaid Admission Regulations, 1994 to the extent of repugnance with Order 272 of the University. Applying these Regulations, 1994, I find that in the case at hand, instead of issuing impugned order (Ann. 17) the respondent Convener at the time of preparing merit list on the basis of a common entrance examination from amongst the successful candidates of RPMT 2001 as provided in Clause 5(d), ought to have also prepared and published a waiting list of candidates alongwith the marks & prescribing the date for filling vacancies as provided in Clause 7(d) of Admission Regulations, 1994 (supra), with a view to follow such waiting list after last date of allotment, for filling any casual vacancies or 'drop out' vacancies arising after the admission are finalised. A waiting list as required to be done after allocation of 85 seats to the petitioner Institute as per Clause 5(d) view order dated 1.10.2001 (first counselling) had admittedly not been done which has resulted in deprivation of meritorious candidates to the petitioner Institute. Hence having failed to do so, the respondent Convener violated the MCI admission Regulations, 1994 thereby depriving the petitioner Institute of its statutory right to fill up any such vacancies If remained after such date as notified by the competent authority as provided in Clause 7(d) of aforesaid Regulations and in this view of the matter, the impugned order (Ann. 17) in so far as it allotted 12 seats for admission in MBBS Course to the petitioner Institute deserves to be set aside. In other words, the respondents cannot say away from a responsibility as envisaged in Clause 7(d) of the Admission Regulation 1994 (Ann.2) by preparing waiting list alongwith allocation of seats during first counselling as per Clause 5(d) with further prescribing cut off date by the competent authority for filling drop out vacancies after finalisation of the admission and thus viewed, the respondents could not have proceeded to prepare another list as done by impugned order (Ann. 17) dt. 7.11.2001.
78. I am also conscious of the fact that 30th November, 2001 being the cut off date for finalising the admission has expired during the pendency of the present case. Writ petition was filed on 9.11.2001 and the operation of impugned order dt. 7.11.2001 (Ann. 17) was stayed. That being so, theory of Us pendena as in maxim pendena lite nihil innovetur i.e. pending the suite nothing can be changed, would apply. Further by order dated 14.3.2002 this Court protected 12 seats by directing not to lapse/surrender to the State.
79. Since the respondent Admission Board failed to allocate or fill up impugned 12 seats for admission to the petitioner Institute by not preparing & publishing a waiting list alongwith marks as provided in Clause 7(d) of Admission Regulations, 1994 at the time of initial selection & allocation of seats while preparing list as envisaged in Clause 5(d) and further failed to prescribe a date for filling up casual or drop out vacancies from the waiting list. In my considered view, these 12 seats can no be filled by the management of the petitioner Institute as provided in Clause 7(d) of the Admission Regulations, 1994 whereby the petitioner is governed to the extent of repugnance with Order. 272 of the University. However, it is made clear that rule of merit-cum-prefer-ence irrespective of the seats either free or payment shall be followed by the petitioner Institute while filling vacancies of these total 12 (six free & six payment) unfilled seats of different categories form among the waiting list which shall be prepared by the competent authority (Admission Board) as if it were prepared during counselling held on 28- 29 September 2001 for admission & allocation of 85 seats to the petitioner institute under Clause 5(d) of the Admission Regulations, 1994. It is also made clear that since the impugned order (Ann. 17) in so far as it allotted 12 seats to the petitioner Institute is being set aside, as a logical corollary thereto, six students (free seats) of different category allotted to the petitioner institute by way of reshuffling or reallotment from BDS to MBBS course, shall be allowed by the respondents to continue in their respective BDS course without any interruption in their studies due to the stay or pendency or outcome of this writ petition, and rest of 6 payment seats students allotted to the petitioner institute by impugned order (Ann. 17) for admission in MBBS course shall be put in waiting list on the basis of their merit cum preference if they so desire for their admission in any other medical college including the petitioner institute.
80. As a result of the discussion and direction to the above extent, this writ petition is allowed with no order as to costs. The impugned order dated 7.11.2001 (Ann. 17) of the respondent No. 2 & 4 is quashed and set aside in so far as it allotted 12 students (six free & six payment seats of different category) to the petitioner Institute, and accordingly these 12 seats being casual & drop out vacancies are directed to be filled up by the management of the petitioner institute as provided in Clause 7(d) of the Admission REgulations, 1994 by following strictly the rule of merit cum preference of the students so also in the light of the above direction from among the students allocated by the competent authority respondent No. 2 & 4 Convener of the Central UG Admission Board) by providing a waiting list as directed above within one month from today to the petitioner Institute in accordance with admission & criteria rule & regulations of the MCI and/or the University of Rajasthan. A copy of this judgment be set to the Chief Secretary Government of Rajasthan for compliance.